(cont.)
shall be the judge of the elections, returns, and qualifications of its own members’.
The Federal Contested Election Act (FCEA) provides the means for this. Disputes
regarding the election of candidates to seats in the US Congress may be resolved by
the chamber affected; this happens by the hearing and investigating of the complaint
by the Committee on House Administration. The Committee reports its findings to the
full House, which then votes on a final resolution.
585. In this example, the established institutions were overwhelmed by the
situation and there was a need to find an alternative solution. While ideally
the political culture, the protagonists and wider society are committed to
safeguarding and respecting the decisions of the established institutions and
it would be better if such situations never arose, the reality is that from time to
time existing systems are discredited or not robust enough to resolve disputes
with credibility. However, the institutional harm that results may be greater
than the benefits provided by the supposed solution. The adoption of such an
alternative solution should be considered very carefully, not least because it
could set a dangerous precedent that could be invoked by any future losing
contender who opts to question an election result and challenge the electoral
authority in the expectation that the alternative solution could benefit him
or her.
b) International ad hoc AEDR bodies
586. In Kenya, in the aftermath of the post-election violence in 2007, the
African Union through the former United Nations Secretary-General,
Kofi Annan, intervened to mediate an agreement and created a coalition
government. In 2009, the Southern African Development Community
(SADC) appointed former South African President Thabo Mbeki to mediate
in the conflict in Zimbabwe which followed the 2008 election. This process
led to the signing of a power-sharing agreement by the belligerent parties and
the formation of a government of national unity.
587. These two examples of extra-constitutional measures to resolve an
electoral dispute required that the two respective parliaments ratify the
agreements as a way of operationalizing the peace agreement and making
them binding on all parties to the dispute. The use of external actors to
negotiate and mediate during the post-election conflict in the two countries,
and the subsequent decision to subject the peace agreements to parliamentary
endorsement in order to make them legally binding, qualifies these initiatives
as AEDR mechanisms.
192
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