Election Investigations Guidebook
that are found within this framework are often impossible to reconcile
with compressed electoral timeframes;2
2|
A specific electoral framework is adopted (rather than using a civil
procedure), which sets out rudimentary due process guarantees—such
as the right to a hearing or the right to submit written answers—but
which lacks rules on the admissibility of evidence and/or the burden
and/or standard of proof;3 or
3|
Both courts and electoral management bodies (EMBs) must follow the
legislation on administrative procedures.4
Another common problem encountered in the field relates to the fact that
legal frameworks often mandate EMBs to investigate violations, although
many are neither trained nor appropriately staffed to conduct professional
investigations. Often, EMBs only involve law enforcement—which would
be best equipped to conduct these investigations—if the alleged conduct is
criminal rather than administrative, even if the alleged maladministration
had or could have had an impact on the election outcome. If criminal conduct
is alleged and a law enforcement body initiates a criminal investigation, the
due process guarantees and the high required evidence standards (beyond
a reasonable doubt) can thwart a timely outcome and limit the ability of
election dispute resolution bodies to take criminal convictions into account
when determining remedies.
Some frameworks that vest EMBs with this mandate stop short of endowing them with the requisite judicial powers to effectively conduct investigations, such as the powers to subpoena documents and witnesses and to hold
non-compliant parties in contempt. Such framework incoherence exposes
EMBs to unjustified criticism that they abdicate their investigative mandates.
An example of an EMB that is vested with a fairly complete array of investiga-
2
Compare Libyan Elect. L. art. 29, No. 10/2014 (imposing 48–72 hour timeframes) with Libyan Civ. Code art. 752–53
(granting ample time for cross-motion and adjournment windows).
3
For instance, most Francophone African electoral frameworks; see, e.g., Code électoral [Electoral Code], Feb. 7,
1992, No. 2012-01 (Sen.); Republique de Cote D’Ivoire, Compliation de lois Portant Composition, Organisation, Attributions et
Fonctionnement de la Commission Electorale Independante (CEI) (2004); Const. art. 49, 81 (Benin); Const. art. 104 (Togo); Const.
art. 116 (Madag.).
4
16
This applies in most post-Soviet states.