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IFES Practitioner Brief on Alternative Dispute Resolution in Elections addressing disputes about the Code of Conduct through mediation or conciliation, rather than filing disputes directly at the central level with the EDR committee or with the Code of Conduct enforcement committee in Nairobi. In addition to the Peace Committees lacking defined authority during the 2013 and 2017 elections, there are no records of the cases the committees handled or of decisions they made. In the 2017 elections, due to the lack of training, some returning officers reported taking decisions and imposing sanctions on candidates for breaches of the Code of Conduct. The sanctions reflected limited understanding of the role of mediation and were both excessive and disproportionate. It can be a challenge to build mediation skills for election officials such as returning officers and their deputies, who are used to making decisions on election matters. For the 2022 elections, the IEBC, with IFES’s support, developed guidelines and a brochure on the Peace Committees to clarify their composition, roles, and responsibilities, and explaining to stakeholders the appropriate avenue for a dispute or grievance should the ADR process fail. The IEBC also trained all returning officers in ADR prior to the 2022 elections. It is crucial to avoid inconsistent resolution of disputes and to clarify the mandate of each mechanism and potential abuse of authority by members to avoid further increasing political tensions during the pre-election phase. The Political Parties Dispute Tribunal (PPDT), composed of permanent and ad hoc magistrates, advocates, and professionals, is responsible for adjudicating inter- and intra-party disputes relating to party primaries. It also offers mediation to disputants on a consensual basis. If this initiative is successful, it could present an example of judge-led mediation in pre-electoral disputes. Political parties are required by law to establish an internal mechanism for dispute resolution (IDRM), but they are free to decide on the types of IDRM in their party’s internal rules. Early in 2022, the Political Parties Act (2011) was amended; it now requires an attempt to file a dispute through this internal mechanism prior to filing with the PPDT (the law previously required resolution through the IDRM). During the 2017 elections, political parties were required 58

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Alternative Dispute Resolution in Elections: Practitioner Brief

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Election Dispute Resolution

Description: While formal dispute resolution processes in elections are vital to upholding the rule of law, the introduction of alternative dispute resolution (ADR) mechanisms may be beneficial, particularly in fragile and post-conflict states or new democracies where disputes must be resolved quickly to avoid violence or where there is very low trust in the judiciary. The case studies in this report demonstrate that ADR mechanisms, if designed and implemented effectively, can ensure more accessible and timely resolutions than formal mechanisms at a lower cost. The use of mediation or conciliation for certain types of pre-election disputes can lead to greater community engagement (including of non-traditional actors), promote accessibility, mitigate impunity for electoral violations, and reduce burdens on the courts and the election management body (EMB). IFES' research also highlights that a well-designed and trained ADR body can enhance the role of women and provide a culturally appropriate mechanism for dispute resolution, while preventing and defusing tensions. This report also highlights the potential risks and challenges to ADR, particularly in contexts where the legal framework, mandate, and procedures are unclear. Inadequate training of ADR practitioners can result in mediators behaving in a partisan manner or failing to guard against power imbalances or human rights abuses, which can further increase tensions or erode trust. Finally, a lack of stakeholder awareness on how to access ADR mechanisms may leave the public with the perception that there is no avenue for justice in some communities. Due to the informal nature of ADR mechanisms, EMBs have rarely collected data on the type and number of disputes handled through ADR, creating a challenge for research and a missed opportunity to draw on lessons learned, promote successful initiatives, and build trust in the EMBs’ capacity to address legitimate disputes. This practitioner brief attempts to remedy the lack of information on the use of ADR in elections and presents a series of case studies to highlight lessons from diverse country experiences. This paper also proposes recommendations to improve the design and implementation of ADR in elections.

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English

Author(s): Uchechi Anyanwu, Typhaine Roblot, Rebecca Cox

Date: Apr 4, 2023

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IFES ADR Practitioner Brief_Mar 22 (3).pdf
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Election Judgments - IFES

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Alternative Dispute Resolution in Elections: Practitioner Brief

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