Principle 2: Thorough Investigation
summarizes the various types of evidence that investigators can consider.115
It is worth noting that it is common for EMBs and other investigative bodies
to refer to the civil code of procedures or rules on evidence from the judiciary
instead of designing their own. This practice can create additional hurdles for
investigators because the formalities of evidence might not be appropriate
for an election adjudication process, where timeliness is a more pressing
concern. In Myanmar, Election Tribunals (temporary bodies established to
adjudicate post-election petitions against the results) follow the code of civil
procedure.116 During its post-election review, the Union Election Commission
and Tribunal members expressed a desire to develop special procedures
distinct from the Code of Civil Procedure. Although pre-determined rules of
evidence ought to be applied and to provide guidance to investigators, it is
impossible to list every type of evidence that could come up in every situation.
Hence, adjudicators must have some flexibility to gather and consider any
evidence that brings clarity to the question at hand. In Kenya, the Political
Parties Disputes Tribunal (PPDT) developed rules of procedure, noting that
the tribunal was “not bound by technicalities or legal rules of procedure and
may waive any rules or procedural requirements.”117
Substantiating and Corroborating Evidence
In the high-pressure political atmosphere that surrounds election periods,
particularly when an overwhelming narrative of fraud dominates public
discourse, investigators cannot overlook the need for a thorough investigation
that substantiates the claims of fraud or malpractice alleged against election
officials or other electoral stakeholders.
In the 2010 Afghanistan presidential election, for instance, many tally forms
submitted to the Independent Election Commission (IEC) and Electoral Complaints Commission (ECC) contained both administrative errors and evidence
of fraud. Several of these tally forms met investigatory triggers118 and fell into
115 See Law of Ukraine on Election of the People’s Deputies of Ukraine, No. 4061-VI, art. 112(1) (2011) (unofficial IFES
translation).
116
Pyithu Hluttaw Election Law ch. 15 (2010) (Myanmar); Myanmar Const. ch. IX (2008).
117
Kenya Political Parties Disputes Tribunal Rules of Procedure § 40 (2017).
118 See Eur. Union Election Assessment Team, Final Report: Islamic Republic of Afghanistan Parliamentary Elections, September
18, 2010, 24 (2011) (triggers included the total number of votes [valid + invalid] that exceeded or equaled 600; more than
90 percent of valid and invalid votes were cast for one candidate [against the total of invalid and valid votes]; or there were
inconsistencies greater than 4 percentage points between the total number of ballot papers withdrawn from the ballot box
and the total number of valid and invalid votes).
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