GUIDELINES ON
ACCESS TO INFORMATION AND
ELECTIONS IN AFRICA
African Commission on
Human and Peoples’ Rights
Commission Africaine des Droits
de l’Homme et des Peuples
DIRECTIVES SUR
L’ACCECÈ À L’INFORMATION ET
LES ÉLECTIONS EN AFRIQUE
GUIDELINES ON ACCESS TO
INFORMATION AND ELECTIONS IN
AFRICA
Preface
The link between access to information and elections
The right of access to information guaranteed by Article 9 of the
African Charter on Human and Peoples’ Rights (the African Charter)
is an invaluable component of democracy, as it goes a long way in
facilitating participation in public affairs. The importance of the right
of access to information is underpinned by the fact that it is a crosscutting right. It is a right that is necessary for the realisation of other
human rights, including the right to participate in government
directly or through freely chosen representatives, as guaranteed by
Article 13 of the African Charter.
Access to information empowers the electorate to be wellinformed about political processes with due regard to their best interests: to elect political office holders; to participate in decision-making
processes on the implementation of laws and policies; and to hold
public officials accountable for their acts or omissions in the execution of their duties. Thus, access to information is a foundational
requirement of the practice of democratic governance. It has been
rightly stated that: ‘No democratic government can survive without
accountability and the basic postulate of accountability is that people
should have information about the functioning of government.’1 It is
the responsibility of State Parties to create an atmosphere that fosters
access to information and to ensure ‘adequate disclosure and dissemination of information’ in a manner that offers ‘the necessary facilities
and eliminates existing obstacles to its attainment.’2
A fundamental element of democracy is the freedom to choose
political leaders through elections. Free and fair periodic elections
expose candidates’ records and proposed policies to a level of public
scrutiny that is capable of positively influencing the responsiveness of
elected representatives. At the macro level, elections allow electors to
1.
2.
S.P. Gupta v Union of India [1982] AIR (SC) 149 at 232.
Navarro Gutiérrez v Lizano Fait, Supreme Court of Costa Rica judgement of 2 April
2002, Annual Report of the OAS Special Rapporteur on Freedom of Expression
2003, 159-160.
3
determine the acquisition or retention of political power in a peaceful
and structured manner and elections are as such crucial for the overall legitimacy of political leadership. They are a necessary element of
democracy.
For elections to be free, fair and credible, the electorate must have
access to information at all stages of the electoral process. Without
access to accurate, credible and reliable information about a broad
range of issues prior, during and after elections, it is impossible for
citizens to meaningfully exercise their right to vote in the manner
envisaged by Article 13 of the African Charter. The importance of
access to information in the electoral process and for democratic governance is recognised in the African Charter on Democracy, Elections and Governance, as well as other sub-regional treaties and
standards.
Drafting process
At its 18th Extra-Ordinary Session, which was held in Nairobi, Kenya
in August 2015, the African Commission on Human and Peoples’
Rights (the African Commission) adopted Resolution ACHPR/
Res.307 (EXT.OS/ XVIII) 2015. This Resolution requested the
Special Rapporteur on Freedom of Expression and Access to
Information in Africa (the Special Rapporteur) to develop guidelines
that would address the absence of a regional standard on access to
information and elections ‘as a means of guaranteeing the credibility
of elections and the overall strengthening of democratic governance
in Africa.’
The then Special Rapporteur, Commissioner Pansy Tlakula,
embarked on the process of developing draft guidelines, with the support of the Centre for Human Rights of the University of Pretoria. In
May 2016, the first in a series of expert meetings was held, bringing
together African experts in the fields of access to information and
elections. The meeting tasked a working group to develop the draft
text whose initial draft was presented to the African Commission
during its 60th Ordinary Session in Niamey, Niger, in May 2017. As
part of the process, two sub-regional consultations were held in
Maputo, Mozambique and in Nairobi, Kenya in March and June
2017 respectively, to elicit feedback from key stakeholders on the
4
draft text. In addition, comments were received electronically by the
Secretariat of the African Commission, in response to a public call for
comments. All the comments received electronically and at each consultative meeting informed the finalisation of the draft text.
The Guidelines on Access to Information and Elections in Africa
(the Guidelines) were subsequently adopted by the African Commission on 10 November 2017, during its 61st Ordinary Session, which
took place in Banjul, The Gambia.
Rationale and objectives of the Guidelines
The Model Law on Access to Information for Africa, adopted in
February 2013, undoubtedly contributed to improving the legislative
landscape of access to information in Africa. States, including those
with constitutional provisions and laws on access to information,
have however generally been slow in mainstreaming proactive
disclosure of information into their day-to-day processes of
governance. These Guidelines provide direction on access to
information in the electoral process as a means of strengthening
democratic governance in Africa.
Recent experiences across the continent illustrate the dangers that
the lack of information during the electoral process poses to peace,
security and stability. At best, the failure of stakeholders in the electoral process to proactively provide information breeds distrust and
lack of confidence. At worst, when combined with simmering ethnic,
religious and other such tensions, it can easily ignite into violence
when voters express their frustration at real or perceived disenfranchisement. Civil tension and conflict resulting in loss of life, internal
displacement and despair have far too often left their mark in the
aftermath of contested elections. Being proactive in providing information on the electoral process is thus imperative.
A cardinal principle at the heart of the right of access to information is that of proactive disclosure. The principle of proactive disclosure requires that those who hold information of public interest must
routinely provide such information to the public even without being
requested to do so. Such information must be provided in easily
accessible formats and it must consider the needs of its intended
users. Proactive disclosure of election related information is thus a
5
tool for fostering accountability and transparency of key election
stakeholders and for guaranteeing the credibility and integrity of the
electoral process.
In line with Article 1 of the African Charter, which requires State
Parties to adopt legislative or other measures to give effect to the
rights, duties and freedoms enshrined in the Charter, State Parties
must thus ensure that all stakeholders in the electoral process fulfil
the responsibility of proactively disclosing information about the electoral process. The purpose of these Guidelines is to provide guidance
to States on the categories of information on the electoral process that
must, at the minimum, be proactively disclosed. The Guidelines complement and do not replace legislation, policies, practices and procedures for access to information on the electoral process which
conform to the African Charter and other standards and best practices on the subject matter.
The Guidelines provide direction to stakeholders in the electoral
process who have a responsibility to proactively disclose various categories of information in their possession or control that are necessary
for safeguarding the integrity and legitimacy of the electoral process.
Guidance is provided in relation to the following stakeholders:
(a)
Authorities responsible for appointing the Election Management
Bodies;
(b)
Election Management Bodies;
(c)
Political Parties and Candidates;
(d)
Law Enforcement Agencies;
(e)
Election Observers and Monitors;
(f)
Media and Online Media Platform Providers;
(g)
Media Regulatory Bodies; and
(h)
Civil Society Organisations.
Conclusion
I trust that these Guidelines will assist all stakeholders in the electoral
process, not only in identifying the specific categories of election
related information that must be proactively disclosed to the public,
but also in developing systems and processes for mainstreaming
access to information into the entire electoral process. I believe these
6
Guidelines will support the better exercise of the right to access
information, as well as the right to vote and to participate freely in
political life for Africans across the continent.
Finally, I wish to acknowledge and thank all the stakeholders,
including State and non-state actors, without whose support and
feedback these Guidelines could never have been prepared. I appreciate and thank Commissioner Pansy Tlakula, the Special Rapporteur I
succeeded, whose vision and energy conceived and drove this process
towards finalisation.
Lawrence Murugu Mute
Special Rapporteur on Freedom of Expression and Access to
Information in Africa
Vice Chairperson of the African Commission on Human and
Peoples’ Rights
November 2017
7
Preamble
The African Commission on Human and Peoples’
Rights:
Affirming its mandate to promote human and peoples’ rights in
accordance with Article 45 of the African Charter;
Recalling Article 9 of the African Charter, which guarantees every
individual the right of access to information, as further elaborated by
the Declaration of Principles on Freedom of Expression in Africa (the
Declaration);
Recalling further Article 13 of the African Charter on the right of all
citizens to participate freely in the government of their country;
Reaffirming its previous resolutions on elections and participatory
governance in Africa, in particular, Resolution on Electoral Process
and Participatory Governance (ACHPR/Res.23 (XIX) 1996),
Resolution on Electoral Processes and Participatory Governance in
Africa (ACHPR/Res.184 (EXT.OS/IX) 2011), Resolution on
Elections in Africa (ACHPR/Res.232 (EXT.OS/XIII) 2013),
Resolution on the 2013 Elections in Africa (ACHPR/Res.239
(EXT.OS/XIV) 2013), Resolution on the 2014 Elections in Africa
(ACHPR/Res.272 (LV) 2014) and Resolution on 2015 Elections in
Africa (ACHPR/Res.293 (EXT.OS/XVII) 2015);
Cognisant that the African Charter on Democracy, Elections and
Governance emphasises the need to promote best practices in the
administration and supervision of regular, transparent, free and fair
elections for the purposes of political stability and good governance
on the continent;
Conscious that the African Union Declaration on the Principles
Governing Democratic Elections in Africa reiterates that the right to
access public information is a fundamental right of every individual;
Noting that regional standards such as the African Charter on
Democracy, Elections and Governance, the African Union
Convention on Preventing and Combatting Corruption, the Protocol
8
to the African Charter on Human and Peoples’ Rights on the Rights
of Women in Africa, in addition to the Declaration of Principles on
Freedom of Expression in Africa, the African Union Declaration on
the Principles Governing Democratic Elections in Africa, and the
Model Law on Access to Information for Africa, recognise the
importance of access to information in the conduct of transparent,
free, fair and credible elections;
Noting further the East African Community Principles for Election
Observation and Evaluation, the ECOWAS Supplementary Protocol
on Democracy and Good Governance, the Guidelines for African
Union Election Observation and Monitoring Missions, the
Parliamentary Forum Norms and Standards for Elections in the
SADC Region, and the SADC Principles and Guidelines Governing
Democratic Elections, which lay down key principles relating to
transparency in the electoral process;
Recognising Articles 19 and 21 of the Universal Declaration of
Human Rights and Article 19 and 25 of the International Covenant
on Civil and Political Rights, which guarantee the right of access to
information and the right to participate in genuine periodic elections
that are free, fair and credible, by equal and universal suffrage
respectively;
Recognising that transparent, free, fair and credible elections play a
crucial role in ensuring the effective exercise of the fundamental and
universal right to democratic elections and participatory government;
Acknowledging the challenges of limited access to information
during the electoral cycle which may foster public distrust, abstention
and violence in the electoral process;
Cognisant that vulnerable and marginalised groups such as women,
persons with disabilities, older persons and other minority groups,
continue to face disproportionate challenges that limit their
participation in the electoral process;
Concerned that there exists no regional standard on access to
information in the electoral process as a means of guaranteeing free,
fair and credible elections in States Parties to the African Charter and
the overall strengthening of democratic governance in Africa;
9
Adopts these Guidelines as minimum standards on access to
information in elections and urges States Parties to the African
Charter to incorporate them in their domestic legislation and take
measures to ensure their effective implementation.
Definitions
1.
In these Guidelines:
‘African Charter’ refers to the African Charter on Human and
Peoples’ Rights.
‘African Commission’ refers to the African Commission on Human
and Peoples’ Rights.
‘Appointing authority’ refers to any person or institution within a
State Party that is authorised by law to oversee the appointment of
members of the election management body.
‘Electoral cycle’ refers to a continuum of interrelated activities and
processes that take place across the following three phases:
(a)
Pre-election period which includes processes such as legal
reforms, planning and implementation, training and education,
voter registration and electoral campaigns;
(b)
Election period which covers processes such as voting operations
and election day procedures and results verification; and
(c)
Post-election period which covers processes such as post-election audits and reviews and institutional reforms and developments.
‘Election Management Body’ refers to the body or bodies
responsible for electoral management. It has the sole purpose of, and
is legally responsible for, managing some or all of the elements that
are essential for the conduct of elections, and direct democracy
instruments such as referendums, citizens’ initiatives and recall votes,
to the extent that they are part of the legal framework.
‘Election monitors’ refers to persons who have a mandate to observe
an electoral process and to intervene in that process if relevant laws or
standard procedures are being violated or ignored.
10
‘Election observers’ refers to accredited independent, non-partisan
individuals who have a mandate to observe an electoral process but
not to interfere in the process.
‘Information’ includes any original or copy of documentary material
irrespective of its physical characteristics, such as records,
correspondence, fact, opinion, advice, advertisement, memorandum,
data, statistic, book, drawing, plan, map, diagram, photograph, audio
or visual record, and any other tangible or intangible material,
regardless of the form or medium in which it is held, in the possession
or under the control of the information holder to whom a request has
been made under these Guidelines.
‘Law enforcement agencies’ refers to the State institutions charged
with maintaining law and order during the course of the electoral
process, including police, military and intelligence operatives.
‘National security’ refers to military strategy, tactics, exercises or
operations undertaken in preparation for hostilities or in connection
with the detection, prevention, suppression or curtailment of
subversive or hostile activities, as well as intelligence. Such
intelligence must relate to the defence of the State; the detection,
prevention, suppression or curtailment of subversive or hostile
activities; methods and technical equipment for collecting, assessing
or handling intelligence information; or the identity of a confidential
source or of the quantity characteristics, capabilities, vulnerabilities
or deployment of anything being designed for use as a weapon or
other equipment.
‘Proactive disclosure’ refers to a regular flow of information by
routinely providing information to the public without the need to
make a request.
‘Publish’ means to make available in a form and manner that is
easily accessible to the public and includes providing copies or
making information available through broadcast and electronic
means of communication.
‘Relevant electoral stakeholders’ refers to the categories of
stakeholders in the electoral process to whom these Guidelines on
proactive disclosure primarily apply, including Election Management
Bodies, political parties, election observers, election monitors, law
11
enforcement agencies, campaign funders whether public or private
entities of persons, media regulatory bodies, the media, civil society
organisations, professional organisations, religious bodies, and other
relevant State institutions, departments and private entities.
‘Relevant private body’ refers to a body that would otherwise be a
private body but is owned partially or totally, or controlled or
financed, directly or indirectly, by public funds, or a body that carries
out a statutory or public function or a statutory or public service.
‘Special voting’ refers to voting on a predetermined day by registered
voters who would otherwise be unable to cast their votes at their
voting station on election day, either for health reasons, disability,
pregnancy, or for other good reason, or by nature of their
employment such as in the case of election officials and members of
the military or police force.
‘State resources’ refers to any monetary and other resources that are
directly or indirectly under the control of Government or a political
entity at the national, regional or local level, which may be human,
financial, institutional, regulatory or enforcement related.
‘State Parties’ refers to States that have ratified the African Charter
on Human and Peoples’ Rights.
General Principles
The Right of Access to Information
2. The right to information is guaranteed in accordance with the
following principles:
(a)
Every person has the right to access information of public bodies
and relevant private bodies expeditiously and inexpensively.
(b)
Every person has the right to access information of private bodies
that may assist in the exercise or protection of any right expeditiously and inexpensively.
(c)
Any policy or practice creating a right of access to information
shall be interpreted and applied on the basis of a duty to disclose.
Non-disclosure shall be permitted only in exceptionally justifiable circumstances.
12
(d)
No one shall be subject to any sanction for releasing information
in good faith
Proactive Disclosure
3. The presumption is that all information held by relevant
electoral stakeholders is subject to full disclosure. Accordingly,
relevant electoral stakeholders are obliged to publish key information
of public interest about their structure, functions, powers, decision
making processes, decisions, revenue and expenditure in relation to
the electoral process.
Duty to Create, Keep, Organise and Maintain Information
4. All relevant electoral stakeholders are obliged to create, keep,
organise, maintain and manage information about the electoral
process in machine-readable formats and in a manner that facilitates
the right of access to information. This requires that electoral
stakeholders keep and record information for a reasonable period of
time on electoral cycle activities, and arrange this information in a
manner that allows prompt and easy identification and also
safeguards the integrity of its content.
Procedure for Accessing Information
5. The process for accessing information held by relevant electoral
stakeholders shall be simple, quick and affordable. In accessing
information, no fees, other than the actual cost of reproduction, shall
be charged. The cost of reproduction shall however be waived where
the requester is indigent.
6. Any refusal of information by relevant electoral stakeholders
shall be well reasoned and premised on existing regional and
international standards and best practices on access to information.
The refusal shall also be provided timeously, in writing and be subject
to an internal appeal process which shall be expeditious and
inexpensive. The right of further appeal against the outcome of an
internal appeal process shall lie to an independent body and the
Courts.
13
Exemptions
7. The right to access information held by relevant electoral
stakeholders may only be limited by narrowly defined exemptions,
which shall be provided by law and shall comply strictly with
regional and international standards and good practices on access to
information.
8. Information may only be legitimately withheld as an exemption
if its release would:
(a)
Result in the unreasonable disclosure of the personal information
of a third party;
(b)
Cause substantial prejudice to a legitimate commercial or financial interest of relevant election stakeholders or other third party;
(c)
Endanger the life, health and safety of an individual;
(d)
Cause substantial prejudice to the national security and defence
of the State;
(e)
Cause substantial prejudice to international relations where the
information relates to information required to be held in confidence under international law, the position of the State with
respect to international negotiations, and diplomatic or official
correspondence with States or international organisations and
diplomatic or consular missions respectively;
(f)
Cause substantial prejudice to the economic interests of the State
in terms of its ability to determine currency or exchange rates,
interest rates or taxes;
(g)
Cause prejudice to law enforcement, in particular, the prevention
and detection of crime, apprehension or prosecution of offenders,
the administration of justice or the assessment or collection of tax
or duty;
(h)
Result in the disclosure of confidential communication between
medical practitioner and patient, lawyer and client, journalist and
sources, or is otherwise privileged from disclosure in legal proceedings; or
(i)
Jeopardise the integrity of a professional examination or recruitment process.
14
Public Interest Override
9. Information can only be legitimately withheld by relevant
election stakeholders where the harm to the interest protected under
the relevant exemption clearly outweighs the public interest in
disclosure of the information.
Severance
10. Where a portion of a document containing requested
information is exempted from disclosure, the exempted portion shall
be severed or redacted and access granted to the remainder of the
document that is not exempted from disclosure.
Whistleblowing Protection
11. Persons who, in good faith and in the public interest, disclose
information about wrongdoing in the electoral process by a relevant
electoral stakeholder or its employees, shall be protected from
administrative, social, legal and employment-related sanctions or
other sanctions of a similar nature.
Relevant Stakeholders
The Appointing Authority
12. States Parties shall ensure that:
(a)
The process for the selection and appointment of members of the
Election Management Body is clearly stipulated in law, and that
it is transparent, widely publicised and allows for public participation; and
(b)
It proactively discloses the following categories of information in
relation to the Election Management Body:
(i)
Mode, criteria and process of appointment of members,
including any requisite considerations such as gender
balance, qualifications and experience;
(ii)
Appointment process of members;
(iii)
Remuneration and conditions of service of members; and
15
(iv)
Procedure for the termination of appointed members of the Election Management Body.
Election Management Bodies
13. To facilitate access to information, Election Management
Bodies shall as part of their operations:
(a)
Create, keep, organise and maintain records in a manner that
facilitates access to information, including for vulnerable and
marginalised groups;
(b)
Adopt and implement flexible proactive disclosure arrangements
that enable access to information without the need for individual
applications;
(c)
Establish clear and effective processes and procedures to deal
with requests for information; and
(d)
Formulate clear procedures for making requests for information,
which must include the required format of requests, costs for
reproduction, timeframes and formats for providing requested
information.
14. An Election Management Body shall cause to be published, on
an annual basis, accurate and updated information pertaining to its:
(a)
Organisational structure;
(b)
Strategic plan;
(c)
Decision-making process;
(d)
Procedure for the recruitment of both permanent and temporary
staff and their conditions of service;
(e)
Training policies;
(f)
Code of conduct for employees, including declaration of assets;
(g)
Budget and sources of funding, including donor funding, which
shall be disaggregated accordingly;
(h)
Mechanisms for voter identification;
(i)
Procurement policy, processes and award of contracts; and
(j)
Annual Report, including audited accounts.
15. An Election Management Body shall proactively disclose
information relating to its membership including:
(a)
Details of the professional background of its members;
16
(b)
Policy on declaration of assets and interests by its members; and
(c)
Its code of conduct and ethics.
16. The proactive disclosure of information by an Election
Management Body is required at all stages of the electoral process.
Certain categories of information shall be disclosed prior, during and
after the conduct of elections.
17. During the pre-election period, an Election Management Body
shall proactively disclose the following information:
(a)
Detailed electoral calendar;
(b)
Criteria, process and results for the delimitation of electoral
boundaries in a simplified manner;
(c)
List of constituencies or voting districts, if applicable;
(d)
Full details of the voter registration process including criteria,
qualifications, requirements and location of voter registration
centres;
(e)
Voters roll containing information allowing the unique identification of each voter, including the full name, identity number, photograph (where it exists), gender and age of each voter, and any
subsequent amendments to this information;
(f)
Information on arrangements for the inspection of the voters roll
by the public to allow for any necessary corrections to be made;
(g)Operational plan for special or advance voting and diaspora
voting (where applicable) relating to dates, time and method,
including storage and security of ballot boxes until the general
count;
(h)
Criteria for identification of the location of voting stations;
(i)
Location and number of voting stations;
(j)
Criteria and requirements for registration of political parties;
(k)
Details of applications made by political parties for registration
as participants in the electoral process, specifying the number of
applications made, the number of applications granted, the number denied and reason(s) for each denial;
(l)
Details of political parties registered as participants in the electoral process, specifying their number and names;
(m)
Qualification, rules and procedure for nomination of candidates
by political parties;
(n)
Code of conduct applicable to political parties and candidates
during the electoral campaign period;
17
(o)
Number and nature of complaints or petitions received by the
Election Management Body and how they have been addressed;
(p)
Mediation and conflict resolution mechanisms in place for
addressing election related complaints or petitions;
(q)
Policy on voter education;
(r)
List of service providers, the criteria for their selection and the
content of their service contracts and details of the procurement
process;
(s)
The criteria for accreditation of election observers and monitors;
(t)
Timelines for registration of international and domestic election
observer missions;
(u)
Details of applications for accreditation by election observers and
monitors, including the number of applications rejected and reasons for the rejection;
(v)
Criteria for accreditation of media during the electoral process (if
applicable);
(w)
Details of application for accreditation by the media, including
the number of applications received, number rejected and the reasons for the rejection;
(x)
Code of conduct for media (if any);
(y)
Number of complaints or petitions received and how they were
addressed, if applicable;
(z)
Categories of observers admitted; and
(aa) Register of the different categories of observers and deployment
areas.
18. On Election Day and results announcement day(s), the Election
Management Body shall proactively disclose the following
information:
(a)
Location, as well as opening and closing times of voting stations;
(b)
Support mechanisms for voters and election officials through the
provision of episodic and periodic reports of election day activities;
(c)
Information on the closing of voting and vote reconciliation,
counting and results management system starting from vote
counts at the voting station up to the announcement of final
results;
(d)
Details of special votes cast including the counting and collation
process;
18
(e)
Information on the occurrence of any technical glitches and how
these have been addressed;
(f)
Information on all complaints or petitions received and how
these have been addressed; and
(g)
Election results by polling station, which shall be conspicuously
posted at each voting station and in publicly accessible electronic
and online formats.
19. Upon the conclusion of elections, an Election Management
Body shall proactively disclose the following information:
(a)
Progress in achieving timelines for the declaration of collated
results which shall be within a reasonable time or as stipulated by
law;
(b)
Declaration and publication of final election results, down to the
polling station level;
(c)
Details of all objections, complaints or petitions received and
how they were addressed;
(d)
Calculations or allocations of seats and timeframes and processes
for the adjustment of political party lists, where applicable; and
(e)
Evaluation reports on the elections produced by the Election
Management Body as well as by election observers and monitors.
Political Parties and Candidates
20. Political parties and candidates (including independent
candidates) shall proactively disclose the following information:
(a)
Constitution, names of office bearers as well as the policies of the
political party;
(b)
Symbols, logos or trademarks associated with the political party;
(c)
Number of registered members;
(d)
Criteria and procedure for nomination and election of candidates
for internal and external office;
(e)
Process for dispute resolution and the relevant appeal mechanisms;
(f)
Mechanisms for public participation, including any special mechanisms for persons with disabilities;
(g)
Mechanisms for monitoring of the nomination process and proceedings;
19
(h)
Names of party agents or representatives responsible for or on
duty at various stages of the electoral process;
(i)
Assets, investments, membership subscriptions, subventions and
donations; and
(j)
Financial schemes initiated.
21. The legal framework of States Parties shall provide for the
proactive disclosure by political parties of:
(a)
Receipt of campaign funding from both public and private
sources;
(b)
Campaign expenditure broken down into distinct line items and
specifying the sources of funding and actual amounts;
(c)
Annual audited financial reports; and
(d)
All other information, proactively disclosed or available on
request.
22. States Parties shall adopt laws requiring the proactive disclosure
of information on the use by all political parties of all state resources,
providing for the following:
(a)
Financial resources, covering the period starting one year before
and ending six months after elections, including Government or
central bank contracts with currency printers, Central Bank or
Monetary Policy Committee reports, and Central Bank reports
on Government issued bonds;
(b)
Institutional resources, covering the period starting six months
before and ending three months after elections, including advertising rates and the allocation of airtime and space to all political
parties in State-supported media coverage, vehicle or flight logs
and fuel allocations to Government departments, and service
agreements, contracts and tenders awarded, their amounts and
budgets;
(c)
Regulatory resources, covering the period starting one year
before and ending six months after elections, including documentary justification for requests for approval of supplementary budgets by Parliament, supplementary budgets passed by Parliament
and political party finance legislation; and
(d)
Enforcement resources, covering the period starting six months
before and ending three months after elections, including details
of records of the elections deployment strategy for the police, military, paramilitary and other law enforcement agents involved in
ensuring security throughout the electoral process.
20
Election Observers and Monitors
23. Election observers and monitors shall proactively disclose the
following categories of information:
(a)
Names and details of key office bearers in the observer or monitoring mission;
(b)
Code of conduct for observers and monitors;
(c)
Financial or non-financial assistance received from any donor or
any political party or candidate, including the incumbent government;
(d)
The Election Observation Mission Report, specifying the methodology, deployment plan as well as the assessment of the conduct and outcome of the elections. This shall be published widely
and timeously, with preliminary reports issued within 30 days
and final reports issued within 90 days;
(e)
Conflict of interest or political affiliations of local observers or
monitors, if any; and
(f)
Sources of funding for any organisations conducting opinion and
exit polls and parallel voter tabulation.
Law Enforcement Agencies
24. In ensuring the maintenance of law and order during the course
of the electoral cycle, law enforcement agents shall proactively
disclose their:
(a)
Code of conduct and roles during the electoral period;
(b)
Training and operational plan and manuals for the electoral
period;
(c)
Deployment plans from pre-election through to post-election
period;
(d)
Budgetary allocations and actual expenditure for the electoral
period;
(e)
Details of any reported election related crimes, including the
number of cases reported and steps taken to investigate, prosecute or withdraw such cases; and
(f)
Details of any arrangements whereby any other persons or
groups are authorised by law enforcement agencies to perform
specific law enforcement related tasks during the electoral period.
21
Media and Internet Regulatory Bodies
25. Media and internet regulatory bodies shall adopt regulations on
media coverage during elections that ensure fair and balanced
coverage of the electoral process and transparency about political
advertising policy on media and online media platforms. Such
regulations shall proactively disclose to the public:
(a)
The complaints procedure against media organisations that violate the regulations;
(b)
The enforcement mechanism for ensuring compliance with the
decisions taken and sanctions imposed;
(c)
The code of conduct for online media; and
(d)
Details of all complaints or petitions received during the electoral
period and how these were addressed.
26. The body responsible for regulating the broadcast media and
any other relevant national security, public or private body involved
in the provision of telecommunication services shall refrain from
shutting down the internet, or any other form of media, during the
electoral process.
27. In exceptional cases in which a shutdown may be permissible
under international law, the reasons for any shutdown shall be
proactively disclosed. Such limitation shall:
(a)
Be authorised by law;
(b)
Serve a legitimate aim; and
(c)
Be necessary and proportional in a democratic society.
28. Any decision of the Media or Internet Regulatory Body shall be
subject to judicial review, which shall be undertaken on an expedited
basis.
The Media and Online Media Platform Providers
29. Print, broadcast and online media, whether publicly or privately
owned, shall proactively disclose the following:
(a)
Editorial and ethical codes or guidelines utilised in undertaking
election coverage, including provisions prohibiting incitement to
discrimination, hostility or violence, if any;
22
(b)
Sanctions for transgressions of these codes or guidelines;
(c)
Complaints procedures for handling breaches of these codes or
guidelines;
(d)
Number of complaints received and how these were addressed;
(e)
Code of conduct for staff on procedural matters;
(f)
Criteria for the allocation of airtime or news coverage for political campaign advertisements and activities;
(g)
Polling methodologies and margins of error;
(h)
Actual allocation of airtime or news coverage for political campaign advertisements and activities;
(i)
Plan for transparent repository of all political advertisements,
including those targeted at individuals or specific groups on
online media;
(j)
Coverage plan for election day;
(k)
Criteria for the selection of election commentators, political analysts or other experts;
(l)
Guidelines on responsible use of online media; and
(m)
Conflict of interest media ownership information, political affiliations or party support arrangements, if any.
Civil Society Organisations
30. Subject to exceptional circumstances in which it can be shown
that their operations will suffer demonstrable harm, civil society
organisations involved in the electoral process shall proactively
disclose the following information:
(a)
Organisational aims and objectives;
(b)
Membership and composition;
(c)
Details of key staff and office bearers;
(d)
Sources of funding;
(e)
Operational plans, methodology, manuals and their implementation for civic and voter education;
(f)
Possible conflict of interest, which may include the promotion of
a particular religious, ethnic or political interest or bias or prejudice in cases where they participate in both voter education and
election observation; and
(g)
Campaign funders.
23
Implementation
31. State Parties shall adopt legislative, administrative, judicial and
other measures to give effect to these Guidelines.
32. State Parties shall facilitate the dissemination of these
Guidelines to relevant electoral stakeholders, as well as all
stakeholders in the electoral process such as Parliament, the
Judiciary, National Human Rights Institutions and the electorate.
33. State Parties shall ensure that relevant electoral stakeholders are
trained in relation to the content of these Guidelines. In particular,
these Guidelines shall form part of the training curriculum for
officials of Election Management Bodies, election observers, political
parties, law enforcement agencies, media and internet regulatory
bodies, media and online media platform providers, and civil society
organisations participating in the electoral process.
34. State Parties shall, in each Periodic Report submitted to the
African Commission in accordance with Article 62 of the African
Charter, provide detailed information on the measures taken to
facilitate compliance with the provisions of these Guidelines.
24
Acknowledgements
The Special Rapporteur is grateful to all those who have contributed
to the development of these Guidelines by: providing financial
support, participating in expert meetings, collaborating with the
Special Rapporteur in hosting sub-regional consultations, sending
through comments on earlier drafts of the Guidelines; participating in
sub-regional consultations and serving as members of the Working
Group.
The financial support provided by the following organisations is
gratefully acknowledged:
Open Society Initiative for Southern Africa
Africa Regional Office, Open Society Foundations
Oxfam IBIS (formerly IBIS), Mozambique
International IDEA
The institutional cooperation of the following institutions in holding
consultations on the Guidelines is acknowledged:
Centre for Human Rights, Eduardo Mondlane University, Mozambique
School of Law, University of Nairobi, Kenya
The following persons served as members of the Working Group
Olufunto Akinduro, Titi Akinsanmi, Ericino De Salema, Jeggan GreyJohnson, Eva Heza, Maxwell Kadiri, Henry Maina, Gram Matenga,
Wilhelminah Mensah, Izak Minnaar, Ken Nyaundi and Ololade
Shyllon.
Finally the Special Rapporteur wishes to thank the Centre for Human
Rights, Faculty of Law, University of Pretoria for managing the
process.
25