6th International Organization for Judicial Training (IOJT) Conference Washington DC November 6, 2013

Transcription

1 Designing Capacity Building Program for Judges on Election Dispute Resolution Preliminary Considerations 6th International Organization for Judicial Training (IOJT) Conference Washington DC November 6, 2013

2 Crucial role of judiciary in the electoral process judiciary through electoral dispute resolution plays an important role in ensuring the credibility and integrity of elections. most important when the electoral outcome is challenged in a hotly contested election. can give the rightful winner the needed authority and legitimacy to govern effectively. can also provide appropriate corrective remedies (e.g. the conduct of fresh elections) to victims of electoral fraud or other forms of irregularities and criminal conduct.

3 Case Study : Kenya the expeditious, timely and judicious resolution of the protest filed by Raila Odinga against Uhuru Kenyatta in the March 2013 presidential elections stabilized the tensed political environment facilitated a peaceful transition of power prevented the repeat of the 2007 violent protests

4 Case Study : Philippines in contrast, the lack of clear judicial resolution on the allegation that former Philippines President Arroyo cheated in the 2004 presidential elections seriously and persistently tl put into question the legitimacy of her government.

5 Case Study : Philippines throughout her term, Pres. Arroyo had to defend her presidency from threats of impeachment and military take over. every year from 2005 to 2008, her political opponents filed impeachment complaints against her while military uprisings in 2006 and 2007 threatened her hold of power.

6 Crucial role of judiciary in the electoral process efforts to reform the electoral process must also focus on the judiciary central role it plays in resolving electoral disputes helps ensures the integrity of electoral processes. Enhancing the capacity of the judges is an important first step because of public s expectation regarding g judges competence, independence and objectivity.

7 Crucial role of judiciary in the electoral process courts have been used in the past to legitimize undemocratically constituted governments.

8 Crucial role of judiciary in the electoral process judicialization of electoral politics danger for the court to succumb to excessive judicial intervention on electoral matters

9 Crucial role of judiciary in the electoral process Judicialization of Politics ever-accelerating reliance on courts and judicial means for addressing x x x political controversies; the growing g involvement of judges in politics; and willingness of the court to regulate the conduct of political activity x x x by constructing and enforcing standards of behavior for interest groups, political parties, and both elected and appointed officials.

10 Capacity Development for judges on EDR While it is necessary to train judges on the latest election laws and jurisprudence in their countries, capacity building should also take into account international standards in EDR as well as international experiences.

11 Capacity Development for judges on EDR : Considerations Adjudication system should endeavor to observe the following International Standards in Electoral Dispute Resolution 1. a right of redress for election complaints and disputes; 2. a clearly defined regimen of election standards and disputes; 3. an impartial and informed arbiter; 4. a system that judiciously expedites decisions; 5. clear burdens of proof and standards of evidence; 6. availability of meaningful and effective remedies; and 7. effective education of stakeholders.

12 Capacity Development for judges on EDR : Considerations to be effective and credible, courts must know when to intervene in electoral disputes pre-election disputes voter registration contests and questions regarding the accuracy of the register of votes or the electoral roll; controversies relating to or arising from qualifications/disqualification and nomination of candidates; violation of election laws, code of conduct and campaign rules; and intra and inter political parties disputes. post election disputes question seek to challenge the outcome of the elections

13 Capacity Development for judges on EDR : Considerations courts must consider the nature and seriousness of the complaint to avoid overreaching. not all election complaints even if adequately proven during the hearing should result to postponement or failure of elections. x x x the Court should carefully consider the real impact of any alleged irregularity especially irregularity attributed solely to the public body entrusted ed with the conduct of elections ec upon the voting outcome. If such irregularity has had no or minimal effect, then there is, in general, no case for annulling the election result. It must be considered, in this regard, that an election is not a process designed for the benefit of the petitioner, but is a much more broad- based exercise that seeks to serve the public interest in the first place. (J.B. Ojwang)

14 Capacity Development for judges on EDR : Considerations requirements of due process must be balanced with the need for a speedy disposition of election petitions. training design should emphasize the far-reaching consequences of court delays in EDR substantial due process safeguards should not result to a system that is complex, extremely slow, and plagued by frivolous complaint sessions must be included to help judges establish reasonable deadlines and timetables for adjudicative procedures to allow for a fair but speedy adjudication process.

15 Capacity Development for judges on EDR : Considerations enhancement of the case management skills of judges has proven to be effective in ensuring the timely disposition of cases. help judges to assert better control over the speed of litigation and make the parties accountable for conducting cting their cases in a disciplined, timeconscious, and responsible manner. the use of an IT-based case management system will be helpful for tracking status of cases to make sure that they do not go beyond the period mandated by law.

16 Capacity Development for judges on EDR : Considerations The need to nurture It is of upmost importance for the public to have confidence in the public trust and judiciary. The role of the judiciary confidence in the is to resolve disputes amicably. Without it, people may use judiciary should violence to resolve differences. To always be considered avoid this, the judiciary must be in the design of independent. This is an inherent trait. If a judge is independent and capacity building knows the law, the losing party is activities. iti likely to be pacified. He or she will be content, notwithstanding the fact that he or she has lost the action. - Justice Markandey Katju

17 Capacity Development for judges on EDR : Considerations trainings and preparations would be useless if candidates and supporters would rather engage in other forms of protests because they do not trust the judiciary.

18 Capacity Development for judges on EDR : Considerations Training design may want to consider existing publications on election dispute resolution.

19 Capacity Development for judges on EDR : Considerations Training design may want to consider existing publications on election dispute resolution. GUARDE offers a list of general and practical recommendations for formulating, organizing, i delivering and evaluating training programs on election dispute resolution. Organization and Development Content and Evaluation

20 Thank you.