Note on Elections and Human Rights

Bipin Adhikari
October 2004

I. International Standards for free and fair elections

1. The three central rights with respect to elections
International standards on elections involve three central rights spelt out in Article 21 of the Declaration of Human Rights, Article 25 of the International Covenant on Civil and Political Rights and Article 13 of the African Charter on Human and Peoples' Rights:

• Right to take part in government
• Right to vote and to be elected
• Right to equal access to public service

2. Prerequisite rights for free and fair elections
Before, during and after elections, a number of other basic human rights gain additional importance for the electoral process to be meaningful.

a) Human rights requirements regarding free elections
The following basic rights have to be fulfilled in order for an election to be considered free:

• freedom of expression
• freedom of opinion
• freedom of information (including right to and have access to information/media)
• right to peaceful assembly
• right to association (right to form and participate in political organizations)
• freedom of movement
• right to be free from discrimination on political grounds
• right to be free from arbitrary killing
• freedom from intimidation

Two general principles are paramount for the holding of free elections:

• principle of non-discrimination (positive duty legally to prevent discrimination; negative duty to refrain from discriminating)
• fully functioning, independent judiciary in order to control the conduct of elections

Human rights standards require a secret ballot to be in place. This mechanism gains importance with regard to the design of ballots and voting compartments, legal provisions establishing that no one shall be compelled by any legal or governmental authority to disclose the content of his or her vote.

b) Human rights requirements regarding fair elections
For elections to be considered fair in terms of human rights, the following standards have to be met:

• equal, universal and non-discriminatory suffrage: reasonable requirements are limited to minimum age, nationality and mental capacity
• principle of non-discrimination
• principle of one person, one vote
• legal and technical assurances to protect the process from bias, fraud or manipulation

3. Genuine elections
Genuine procedures
For elections to be considered genuine, they have to reveal and give effect to the freely expressed will of the people. There must be a prearranged formula in place which is acceptable to the people and designed to bring about transfer of power to prevailing candidates.
When going to the polls, people have to have a real choice, i.e. it must be ensured that political pluralism exists. Legal protection must be provided to political parties for them to function effectively.

II. Focus of advisory services and technical assistance in terms of human rights concerns

1. Election administration
Examination of the existing provisions of the law regarding the question whether the administrative structure is objective, unbiased, independent, effective.

• Careful revision of the provisions regarding electoral staff (appointment, remuneration, duties, powers, qualifications)
• Establishment of a single line of ultimate authority
• Legal guarantees to insure that staff is insulated from bias, political pressure and corruption
• Guarantee of transparency of all electoral activities
• Adequate advance training for election officials

2. Constituency delimitation

• when identifying the electoral districts and boundaries: respect to the principle of equal suffrage
• when distributing polling stations: ensuring equal access to polling stations within each constituency during the elections

3. Registration of electors
In general observance of the principle of non-discrimination and insurance that no unnecessary technical barriers to participation are created

a) System of advance registration

• Examination of the provisions concerning elector qualifications, residence requirements, election lists and registers, as well as means for challenging documents as to whether they are fair and effective
• Safeguarding that election lists are available to interested parties
• Suspension of registration as closely as possible to election day

b) No system of advance registration

• Providing measures to prevent double-voting and voting by unqualified persons

4. Nominations, parties and candidates
Human rights requirements for provisions concerning candidate qualifications:

• Clear
• Not discriminating against women, racial or ethnic groups
• Disqualifications subject to independent review

Human rights requirements with respect to political parties:

• No unreasonable restrictions on participation or campaigning
• Protection under the law for party names and symbols
• Procedures for designation of party agents, nomination time, place requirements, campaign financing clearly established by law

5. Polling, tabulation and reporting
Revision of the existing law; are detailed provisions in place regarding the following points:

• Form of ballots
• Design of ballots and voting compartments
• Manner of polling
• Proxy and absentee voting provisions in place
• Provisions in place regarding voters with special needs (disables, prisoners, elderly)

Regarding the ballots

• wording of ballots in absolute clarity, identical in all languages
• ballot form takes into account various levels of literacy

Regarding the voting, counting process:

• is attendance of observers provided for
• is counting open to official observation by concerned parties, is process secure and fair
• are there independent verification procedures in place

6. Revision of the laws to ensure respect for fundamental human rights,
Repeal or suspension of laws that

• have effect of discouraging political participation
• emergency or other exceptional legislation restricting fundamental rights

7. Media access and regulation
Examination of media regulations in order to ensure that safeguards exist against

• political censorship
• unfair government advantage
• unequal access during the campaign period (equality of time and space allotted, hour of broadcasting, placement of printed advertisements)

Consideration of the option to set up an independent body to assure fair and responsible broadcasting during election periods

• representative transitional bodies
• electoral administration
• separately constituted media commission

Consideration to develop an agreement or code of conduct for the media to ensure responsible electoral broadcasting and publication

8. Public information and voter education
Education of the public (voter education campaigns, publishing and dissemination of literature in the various national languages) throughout the territory of the country, focusing on the following questions:

• Location, time and way of voting
• Importance of voting

Consideration might be given to specific training of certain professional groups (registration and polling officials, police and security personnel, media, political parties) which play a crucial role in the electoral process and can serve as a multiplier of knowledge and expertise.

9. Observation and verification
Eminent role of two actors:

a) Police and security forces

• Dissemination and appliance of the Code of Conduct of Law Enforcement Officials adopted by the GA in 1979
• Safeguard that role of police/security forces is subordinate to that of polling officers
• Safeguard that police presence at places of registration of polling is discreet, professional and disciplined

b) Observers
Observation and verification by the following actors

• Representatives of political parties and candidates
• Non-partisan election observers (clear provisions in the electoral law as to the terms of deployment, sufficient number in place, adequate training)

Safeguards that observers are legally afforded free movement and access to all electoral events and protected from harm and from interference with their official duties

III. Important documents

• Draft General Principles on Freedom and Non-Discrimination in the Matter of Political Rights (Sub-Commission on Prevention of Discrimination and Protection of Minorities of 1962)
• Enhancing the Effectiveness of the Principle of periodic and genuine elections: Framework for Future Efforts (Commission on Human Rights Resolution 1989?51 of 07.03.1989)
• Code of Conduct of Law Enforcement Officials (adopted by GA in 1979)

• Norwegian Helsinki Committee/Norwegian Institute for Human Rights

"Manual for Election Observation"

Oslo, 1996. Language: English. [http://www.nhc.no/internasjonal/valgmanual.htm]
(list HREA)

This manual was designed for EU and OSCE institutions and officials dealing with the methodology and organisation of election observation. It emphasises methods and highlights the main observation targets.

Office for Democratic Institutions and Human Rights/Organization for Security and Cooperation in Europe (OSCE)

"The ODIHR Election Observation Handbook"
Warsaw, 1999 (fourth edition), English, Russian
http://erc.hrea.org/Library/monitoring/odihr99.html (list hrea-index)

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