International Foundation for Electoral Systems The authors’ research and conclusions are predicated on several important principles recognized in international law and guidance offered by international and regional organizations. First, the legislative framework must establish effective mechanisms to prevent public officials from taking unfair advantage of their positions in order to influence the outcome of elections. It is essential for states to draft legislation that clearly defines the permissible uses of state resources as well as what constitutes an abuse. These provisions should clearly apply to both incumbent and opposition political forces, and regulations “should not favor or discriminate against any party or candidate.”19 The legal framework should include provisions requiring public employees to act in a neutral and impartial manner,20 and make a “clear distinction between the operation of government, activities of the civil service and the conduct of the electoral campaign.”21 The legal framework should also “provide for an equal right to stand for elections and for equality of opportunity to all candidates, including public employees, and political parties during electoral processes” while at the same time provide for a “clear separation between the exercise of politically sensitive public position and candidacy.”22 Second, effective and transparent oversight by independent institutions is essential to address the abuse of state resources.23 Institutions responsible for auditing the use of administrative should be granted the necessary authority and mandate to monitor parties and candidates, and must be equipped with the necessary human and financial resources to effectively carry out their mandate. Access to information is key in this regard. Magnus Ohman has highlighted the potential difficulty in oversight bodies being able to “resist pressure from the political power,” stating that “efforts must be made to insulate the administration from the political government.”24 This could include including hiring and promotions being strictly based on merit, job security through tenure of oversight officials, and having “clear regulations on political involvement in administrative matter.”25 It is critical that any identified abuses of state resources be reported in a “timely, clear and comprehensive manner.”26 Finally, appropriate remedies are vital for the effective contradiction of the abuse of state resources, in order to sanction state officials who violate the law. In a forthcoming American Bar Association publication on the subject, Chad Vickery and Katherine Ellena outline six core elements of effectiveness, including that a remedy: (1) ensures that the law in the books and their intent is realized in practice; (2) is provided in a timely manner; (3) is proportional to the violation or irregularity in question; (4) is enforceable; (5) leads to deterrence or the change in behavior intended; and (6) reinforces the perception of fairness.27 The process for addressing violations should be transparent and accessible, with clear provisions outlined in the law, including which body has jurisdiction to handle the case and how it is appointed, and who has standing to register complaints or press charges.28 OSCE/ODIHR, Election Observation Handbook 18, 47 (5th ed., 2005). Venice Comm’n & OSCE/ODIHR, Joint Guidelines, supra note 10, at §§ A.3-A.4. 21 Id. at § A.5.2. 22 Id. at §§ A.3-A.5. 23 The authors also note the importance of other entities, such as investigative journalists and civil society organizations, in monitoring potential abuse of state resources. However, this is not a focus of analysis for the purposes of this paper. 24 TIDE, supra note 4, at 142-143. 25 Id. 26 Venice Comm’n & OSCE/ODIHR, Joint Guidelines, supra note 10, at § B. 1. 3. 27 See Chad Vickery & Katherine Ellena, Measuring Effective Remedies for Fraud & Administrative Malpractice, in International Election Remedies, (American Bar Association (ABA), forthcoming 2016). 19 20 See IFES, International Standards, in Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections (GUARDE) (Chad Vickery ed., 2011) [hereinafter IFES GUARDE]. 28 4