International Foundation for Electoral Systems at the time of filing is not unreasonable, as in IFES’ experience globally, frivolous complaints and false allegations can be common in elections. However, the dismissal of legitimate complaints due to unreasonable evidentiary standards at the filing stage, or because of a failure to shift the burden of proof from the petitioner to the investigative body, violates a fundamental tenet in the fair administration of justice. In Namat Alieyev v. Azerbaijan, the ECtHR charged domestic courts with the responsibility of taking reasonable measures to investigate alleged irregularities when the evidence provided by an applicant is insufficient to decide the case but nonetheless strong enough to warrant additional inquiry.78 Once a claim is accepted by a court or tribunal, a respondent must be provided a reasonable opportunity to submit evidence to refute the allegation.79 Often the EMB will be a respondent in the case, requiring it to collect materials from polling stations across the country. This can be a significant undertaking made further challenging by tight deadlines and multiple concurrent petitions. In Kenya, the EMB has only 48 hours from the date of service to provide the Supreme Court with certified copies of the documents used to declare the results.80 This involves collecting materials from 40,883 polling stations across 292 constituencies.81 Ultimately, EDR proceedings should be structured so that these challenges are accounted for or mitigated in such a way that still allows for a fair hearing. A lack of notice, an inability to prepare a defense, and short deadlines for resolving complaints can also impact the proper investigation of legitimate grievances. Election disputes can present unique challenges with respect to uneven access to evidence and compressed timelines for investigations. To ensure a fair fact-finding process, these challenges must be addressed within the EDR process. In Kenya, for post-election petitions in the courts, the burden is on the petitioner to prove his or her case. However, depending on the effectiveness with which she is able to do so, the evidential burden can be lessened to ensure a legitimate grievance is properly investigated, or if a legitimate grievance is demonstrated, the burden would shift to the EMB. This approach helps to ensure any inequalities in terms of access to evidence can be mitigated. Guidelines on what constitutes evidence varies by country, with some countries publishing detailed guidelines on evidential requirements and others leaving definitions more open-ended. In Tunisia, the evidence must have a “sufficient degree of 78 Namat Aliyev, supra 65, paras. 88-89. “[i]n terms of initial evidence necessary for examination of this specific issue, the courts had to do nothing more than request the electoral commissions to submit those protocols to them for an independent examination. If such examination indeed revealed inconsistencies, a more thorough assessment of their impact on the election results would be necessary.” 79 A fair hearing is not necessarily the same as a fair trial, as in election cases a hearing might be an administrative one, and certain court formalities may not need to be strictly complied with in order for a proceeding to be considered a fair hearing (and this is particularly important given the different EDR models that exist). Ultimately, a “fair hearing” requires reasonable opportunity for an individual to be present at the designated time and place for a hearing, during which time he or she may offer evidence, hear the evidence provided by the other side, crossexamine opposition witnesses, and offer a defense or response. 80 Section 11(1) of the Kenya Supreme Court (Presidential Election Petition) Rules 2017 81 https://www.iebc.or.ke/registration/?stats. To add further challenge, there are currently hundreds of other election-related petitions ongoing across Kenya, as is commonly the case in many countries after a general election. 26