372. Usually there is no urgency to determine criminal or administrative
liability for an alleged crime or an infraction during the period of the electoral
campaign or before the declaration of the results. However, the dynamic for
the hearing and resolution of electoral challenges which need to be resolved
in the course of the electoral process is a separate one. If an alleged electoral
offence is (if proven) also grounds for the annulment of an election, the
evidence must be produced and the facts taken before an EDRB to hear
the challenge so that it can rule accordingly – regardless of the conclusion
reached subsequently through the procedures for determining criminal or
administrative liability.
373. The determinations of the EDRB should be issued without unwarranted
delay, always seeking to reach and issue a decision before the possible
infringement of an electoral right becomes irreparable. The judgement should
also be issued before the elected person or body is installed into office. It
is thus common for EDRBs to meet continuously and for very long hours
during key periods.
374. Some EDR systems do however provide for the possibility of the
final decision being issued subsequently. There have even been cases of a
decision being issued after the term of the official challenged is up, which
means that its effects are exclusively financial (the payment of the salary of
the elected member). This applies both in EDR systems that come under
legislative bodies, as in the United States, and also, in some cases, in EDR
systems entrusted to judicial bodies, as in Colombia. Conversely, in Nigeria
a gubernatorial candidate in Anambra State, Peter Obi, who had successfully
challenged the re-election of the incumbent governor, Emeka Ngige, in 2007,
and was installed in office in his place, was granted a full five-year term
of office by the court instead of the remainder of the term. This situation
could be regarded as the restoration of Obi’s electoral rights in full instead of
monetary compensation.
375. Where an EDRB does not resolve a challenge within the time frames
legally provided for as a result of its own inefficiencies or behaviour, this may
in itself give rise to some kind of liability.
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6. Principles and guarantees of EDR systems
in an objective, expeditious and impartial manner by the authority tasked to
do it. It would be advisable to consider conferring technical autonomy on the
body entrusted with prosecuting electoral crimes and offences, and it should
enjoy the support of the various political forces. This is the experience in
Panama, which has an Attorney General for Electoral Crimes provided for in
the constitution as an autonomous position appointed by the legislature.