Assessing the Implications of Postponing Elections

It is no longer news that the World Health Organization (WHO) declared the new coronavirus a global pandemic on March 11, 2020. COVID-19 had jumped, and it is still flying across borders without having a visa or travel documents. It has brought the world into a standstill and has affected more than 4 million people in nearly 187 countries. This is showing no signs of slowing down. Given its impact, COVID-19 has left all countries in commotion despite the efforts of health workers across the globe, and it has an adverse effect on all and sundry, including systems and institutions.

The COVID-19 pandemic is not only a health and economic emergency; it is also a crisis for democracy, human rights, and governance that could undermine or collapse fragile democracies[1]. The societal consequences of the pandemic are likely to hit vulnerable democracies and countries with widespread corruption, creating a new set of security and political challenges. Developing democracies will be more susceptible to populist authoritarian appeals. For both developing and advanced democracy, the rapid spread of the virus coupled with no viable vaccine has profoundly impacted on the delivery of public services and routine events that are integral to inclusive societies. An election is one of such events.

A look into the corridor of global democracy through electoral management bodies and news media shows that many elections have been postponed due to the outbreak of COVID-19. With more than 70 national elections scheduled for the rest of the year worldwide, the coronavirus (COVID-19) pandemic is putting into question whether some of these elections will happen in time or at all. The primary response of many countries has been to postpone elections.  As of April 3, 2020, not less than 76 elections (Local elections, municipal, by-elections, presidential elections, and general elections) have been postponed in 48 countries across six continents across the globe[2].

To most countries that postpone elections, it is a safety measure that is necessary to avoid community spread. It is widely known that strategies used in most countries to conceal the spread of COVID-19 include but not limited to physical distancing, staying home, and a ban on social gatherings.

ASSESSING THE RISKS AND IMPLICATIONS OF POSTPONED ELECTIONS ACROSS THE WORLD

Based on the information that emerges by the hour, nations are responding to this new reality by making rapid critical decisions such as postponing a major democratic component: elections. In as much the day-by-day advice of epidemiologists and public health officials must be considered.  In as much as health and safety are essential, quarantines, the closing of community spaces, and other actions to contain the spread of this deadly virus introduce complications and implications on the timing and administration of elections.

Loads of other risk factors need to be considered too, these include:

  • Constitutional crisis
  • Economic implications
  • High-handedness from political opportunist
  • Loss of voice

CONSTITUTIONAL CRISIS

Election is a fundamental right, and it is crucial to facilitating peaceful and democratic transfers of power, deadlines for holding these elections are often baked into a country’s legal or constitutional framework[3]. No other time that the constitutional and other electoral laws should be carefully navigated other than this time of global pandemics. In some countries the election management body is mandated with setting the date of the election within the confines of constitutional deadlines (for example, Nigeria and Ethiopia); in some, it rests with the executive (New Zealand); and in others, they have the date for conducting elections and period of the elected official’s tenure in their constitution (United States of America). Wherever the decision-making authority rests, careful consultation is required to examine the issues at stake and the options on the table. At the same time, the burden of making such a sensitive decision of postponing elections swings as the legal framework and constitution of countries differs and can cause significant distress, most notably where the legal basis for the postponement is not clearly cut.

Seldom, most countries during the constitution drafting period, state actors envisage rare happenings such as natural disasters, war, and health challenges such as the COVID-19 to make provision for continuity of governance or government beyond the constitutional ratified term. However, in many other cases, it is silent. Countries that have provisions that allow the postponement of elections due to emergencies like a global pandemic in their Constitutions or electoral legal frameworks have already relied on such provisions to postpone elections or referendums due to COVID-19, for example, Serbia, Sri Lanka, and the United Kingdom. However, where emergency measures conflict with constitutional deadlines for elections, it can result in pressure to move ahead with an election or to risk a real or perceived constitutional crisis.

The continuity of government beyond the constitutionally ratified term in case of an emergency like war and global pandemic has load of puzzles to unravel. The question of who takes over government becomes imperative; would the tenure of the incumbent be extended, or an interim government would be chosen? Before this option of tenure extention would suffice, much consideration needs to go into the timing of the constitutional amendment process. If both electoral deadlines and emergency powers are provided for in the constitution without any specific guidance on how they interact, new constitutional interpretation will likely be needed by the courts or whichever body has the authority to determine constitutional questions.

ECONOMIC IMPLICATIONS

Postponing elections equally comes with economic implications, when there is no early declaration of postponement decision. In the face of COVID-19 pandemic, Nations across the world that have elections months ahead have ample time to re-strategize on ways to ensure election integrity and administration without the further spread of the virus. However, nations across the world that have their elections closer before the new coronavirus was declared as a global pandemic, their Electoral Management Bodies would have made a logistical arrangement, trained election officials, produced ballot papers, voting booths, seals, and other supplies needed during the process. If any of these countries fall into the developing continent like Africa, where manual voting processes and procedures are still dominant. Sensitive and printed election materials and voter Education materials with designated date become a commercial waste. The cost to the political parties and election observers can better be imagined. Some of the political parties may not have the resources to foot the extra bill, given that their agents had already been mobilized. Most civil society organizations would have invested heavily in an observation mission. Postponing could widen the fiscal deficit if necessary, care is not taken.

HIGH-HANDEDNESS FROM POLITICAL OPPORTUNIST

Public concern of actual or perceived politically motivated abuse of the postponement must be taken very seriously. The risk that incumbent governments may act unilaterally for political advantage, or at least perceived political advantage, should be considered; to avoid undermining confidence in the process and the legitimacy of the result.

Some International laws allow that the effectiveness of laws backing some civil rights be partially taken away in emergencies. These include the right to vote and stand for election, even though with very strict guardrails to prevent abuse. Some countries declared a state of emergency since the outbreak of the new coronavirus. In common parlance, the “state of emergency” denotes a legal regime in which public institutions are vested with extraordinary powers to address existential threats to public order.[4] States of emergency from a human rights perspective often paves the way for systematic human rights violations and, most times, challenge states’ commitment to the rule of law because of the suspension of the legal order. It is no coincidence that many of the most egregious human rights abuses associated with the conflict in Sudan’s Darfur region, such as genocide and crimes against humanity, followed Sudan’s 1999 declaration of a state of emergency.[5] Nor is it a coincidence that the United Kingdom has attracted international criticism over the years for invoking Article 4(3) to limit civil and political rights in response to terrorist attacks in Belfast, London, and New York City.[6]

Emergencies may compromise legal order by generating political pressures to augment executive power at the expense of legislative and judicial institutions. Some commentators have lamented that courts often dial down the intensity of judicial review during emergencies in deference to the executive branch, enabling the executive to sidestep ordinary legal restraints.[7] Once legal restraints are relaxed or abandoned, emergency powers can become permanently entrenched, facilitating the further abuse of public powers long after the crisis has passed.

LOSS OF VOICE

An election is an integral element of representative democracy. It enables the citizenry to make decisions that shape their socio-economic and political landscape. It also determines fairly and freely who should lead them at every level of government periodically.  If the elected falter, the electorates still possess the power to recall them or vote them out in the next election. If the coming election is where the opportunity lies for the citizen to change who governs or represents them in government, then the opportunity is lost as at the time the election is postponed.

Download the e-copy of the Technical Brief: Assessing the implications of postponing elections.

[1] Mitigating the Impact of COVID-19 through Democracy, Human Rights, and Governance (DRG) Assistance by CEPPS (Strengthening Democracy through Partnership)

[2] Elections Postponed Due to COVID-19 – As of April 13, 2020  International Foundation for Electoral Systems (IFES)

[3] The Legal Quagmire of Postponing or Modifying Elections by IFES

[4] Oraá, supra note 1, at 7; see generally Gross & Ní Aoláin, supra note 13.

[5] Int’l Comm’n of Inquiry on Darfur, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General 13–16 (25 Jan. 2005), available at http://www.un.org/News/dh/sudan/com_inq_darfur.pdf; Report of the United Nations High Commissioner for Human Rights and Follow-up to the World Conference on Human Rights, Situation of Human Rights in the Darfur Region of the Sudan, U.N. ESCOR, Comm’n on Hum. Rts., 12–13, ¶ 39, U.N. Doc. E/CN.4/2005/3 (2004).

[6] See Derogation Notifications, supra note 21 (notifications of United Kingdom & Northern Ireland (17 May 1976, 23 Dec. 1988, 18 Dec. 2001)); Michael P. O’Connor & Celia M. Rumann, Into the Fire: How to Avoid Getting Burned by the Same Mistakes Made Fighting Terrorism in Northern Ireland, 24 Cardozo L. Rev. 1657 (2003).

[7] See, e.g., David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency 3 (2006).

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