Chapter 1: International Standards This heightened standard can help ensure that adjudicatory bodies do not overturn valid elections due to misconstrued pieces of commonly available evidence, or as a result of nuisance complaints submitted by disgruntled losing parties, both of which are likely using a less stringent standard. On the other hand, the heightened standard will still allow a challenger to prove a case despite not necessarily having access to evidence that has been concealed or destroyed by a party committing fraud, something that would be much more difficult if the action required a showing beyond a reasonable doubt. A clear and convincing standard provides a balance to ensure that the complaint adjudication system is fair and accessible. In addition, the clear and convincing standard as it is currently used throughout the world applies equally well if the election complaint is construed as a civil fraud action (as in the U.S. and U.K. application of the standard), or as a civil human rights matter (where the standard is common in other countries). The Afghanistan Electoral Complaints Commission used clear and convincing evidence as the standard for complaints involving the 2009 Afghan elections.196 In many circumstances, however, the clear and convincing standard can also damage the electoral complaint adjudication process. Indeed, in a practical sense complainants may face great difficulty in obtaining evidence, and struggle to gather the facts that prove their allegations, particularly in the developing democracies that are in particular need of an effective adjudication system. The election officers, the electoral commission or the opposing political party will have access to such evidence, but the complainant will likely not. Thus, as discussed above, a preponderance of evidence standard may already be a difficult burden to handle for the claimant, and a clear and convincing standard may further blunt meritorious claims. As Nigerian Supreme Court Justice Kayode Eso affirmed in the case of Chinwendu v. Mbamali, “care must be taken not to sacrifice justice at the altar of technicalities. The time is no more when disputes are dealt with rather on technicalities and not on merit.”197 Using the heightened standards, legitimate claims could thus be dismissed and irregularities would not be corrected even if the outcome of the election 196 197 Rules of Procedure of the Electoral Complaints Commission, §§ 7.2, 17.2 (2009) (Afg.). Chukwudi Nwokoye, Burden Of Proof In Election Petitions, Nigeria Village Square (Dec. 29, 2008), http://www.nigeriavillagesquare.com/articles/chukwudi-nwokoye/burden-of-proof-inelection-petitions.html. 65