Guidelines for Understanding, Adjudicating,
and Resolving Disputes in Elections
not sit over its own case and that both the electorate and the political parties get sufficient compensation in the case of default by the Commission
in the performance of its duties.”70
In Brazil, the Constitution also provides for the establishment of the electoral complaints adjudication mechanism.71 There is a Superior Electoral
Court, a Regional Electoral Court in the capital of each state and one in the
Federal District, municipal election judges in large cities, and local election
boards in small towns. The Brazilian Constitution details the composition
of the Electoral Courts and states that a supplementary law should be adopted to define the “organization and competence of the electoral courts,
judges and boards.”72 Constitutional provisions and Parliamentary acts that
establish election complaint institutions help to protect the right to judicial
review in electoral matters.73 Indeed, the constitution and legislative acts
are usually not easy to amend and thus they are stronger gatekeepers to
the right of redress than an administrative regulation and provide stability in the electoral law and, more specifically, in the electoral complaints
adjudication system.
Clearly, not all states use the same model for the formal judicial system.
Some states incorporate tribal and religious traditions into government
processes.74 Codification of substantive and procedural election complaint
law should account for legal traditions and customs, including traditional
practices related to complaint settlement, such as the use of mediation
or arbitration (as opposed to adversarial adjudication). For example, in
Afghanistan, community elders have great authority within their community and are endowed with respect. If the elders understand the electoral
complaints process and are able to participate in it, the decisions will be
Id. Supplemental Transitional Provisions 3, 4.
Constituição Federal [C.F.] [Constitution] arts. 118-121 (Braz.).
72
Id. art. 121.
73
See, e.g., Constitution of the Republic of Liberia Jan. 6, 1986, art. 83(c) (“Any party or
candidate who complains about the manner in which the elections were conducted or who
challenges the results thereof shall have the right to file a complaint with the Elections
Commission.”) , available at http://www.necliberia.org/content/legaldocs/laws/theconstitution.pdf. The Liberian Constitution also provIdes for a mechanism of appeal: “The Electoral
Commission shall within seven days of receipt of a notice of appeal, forward all the records
in the case to the Supreme Court.” Id.
74
Thomas Barfield et al., United States Institute of Peace, The Clash of Two Goods, State and
Non-State Dispute Resolution in Afghanistan 2 (2006), available at http://www.usip.org/files/
file/clash_two_goods.pdf.
70
71
30