The Covid-19 pandemic and responses to it have already had serious human, economic and social consequences around the world, testing and challenging State governance, especially with regard to elections. This situation may also pose risks for democracy and fundamental rights and freedoms in sub-Saharan Africa, with national elections slated to be held this year and early next year in several countries. FIDH outlines the risks the pandemic could pose to democracy and human rights —whether elections are postponed or maintained—and recalls the importance to have credible, free, transparent, peaceful and safe elections.
THE COVID-19 PANDEMIC, AN ADDITIONAL CHALLENGE FOR DEMOCRATIC ELECTIONS?
Covid-19 has already spread to most countries around the world and on the African continent 53 countries have reported confirmed cases of the virus at the date of publication of this note. Most African States have adopted measures to curb the spread of the virus, and some of them have enacted states of emergency. Other measures range from social distancing to bans on mass gatherings, stay-at-home orders, and lock-downs.
Most of these measures have an impact on people’s enjoyment of their human rights, including on the right to vote and on the organisation of timely and credible elections. National elections, including presidential and parliamentary, as well as local elections, are scheduled for the second half of 2020 and the first half of 2021 in several African countries and could face various challenges posed by the evolving Covid-19 situation.
Elections in ordinary times are critical building blocks for societies and a test for democracy with significant resources required in terms of time, finances and human labor. Voters, candidates, observers and electoral officials are all engaged in the electoral process, often in a highly charged context. In far too many cases, electoral periods have been marred by human rights violations undermining the holding of credible and peaceful elections.
The Covid-19 pandemic poses an additional challenge to electoral processes in Africa and raises concerns for the holding of free, fair, transparent and peaceful elections, all while ensuring the safety of citizens. With the omnipresent threat of the pandemic, States are now being forced to evaluate whether they are in a position to hold credible elections, a component of democratic governance, and further of peace, security and development.
FIDH is concerned and warns about the risks that decisions made on elections in this context may have on democracy and human rights, including the right to health, as well as the respect of States’ electoral obligations.
WHAT INTERNATIONAL LAW PROVIDES FOR DEMOCRATIC ELECTIONS ?
Credible elections are characterised by fairness, transparency and freedom. The peaceful conduct of elections has also come to be considered as a component of democratic elections. The Covid-19 crisis has brought an additional component to the holding of democratic elections, which is the safe and secure nature of the elections, with regard to the health of the participants. The principles of fair, transparent, free, peaceful and safe elections are enshrined in several international and regional texts.
The African Charter on Democracy, Elections and Governance (ACDEG) (2007) recognises the importance of consolidating a culture of political change based on the regular holding of transparent, free and fair elections conducted by national, independent, competent and impartial electoral bodies (art. 3 and 17).
Holding peaceful, transparent, free, and fair elections organised by independent institutions is one of the foundations of any rule of law and peaceful political life, not to mention a country’s development.
Genuine democratic elections require an environment conducive to respect of human rights and fundamental freedoms, including freedom of peaceful assembly and association, freedom of opinion and expression and personal security and safety, all of which are essential conditions for the effective exercise of the right to vote.
The International Covenant on Civil and Political Rights (1966) refers to the right of every citizen to take part in the conduct of public affairs and to the right to vote in elections “guaranteeing the free expression of the will of the electors” (art. 25).
The Southern African Development Community (SADC) have developed some Principles and Guidelines governing democratic elections, particularly informed by the Declaration on the Principles Governing Democratic Elections in Africa of the Organisation of the African Unity (2002), which list, inter alia, the following principles for conducting of democratic elections:
Full participation of the citizens in the political process;
Freedom of association;
Regular intervals for elections as provided for by the respective National Constitutions;
Equal opportunity to exercise the right to vote and be voted for;
The SADC Principles and Guidelines also mentioned the responsibility of the State to “Ensure that adequate security is provided to the entire electoral process including all political parties participating in elections”.
Further, the ACDEG also states that “State Parties shall create a conducive environment for independent and impartial national monitoring or observation mechanisms” (art.22).
A conducive environment for free, fair and peaceful elections is also part of the guidelines for the observation of elections developed by the SADC, along with a “Timeous announcement of the election date”.
However, in times of public emergency, derogations and limitations to certain human rights and electoral obligations, including voting processes, may be permitted, based on the exceptional nature of the context and subject to strict conditions.
In this regard, according to the United Nations (Center for Human Rights), ’Postponement of scheduled elections necessitated by public emergency may be permitted in certain limited circumstances, but only if and to the extent strictly required by the exigencies of the situation. Any such exigencies must comply with all the rigid international standards for such derogations and must not threaten democracy itself (…)”.
DIVERSITY OF CONTEXTS AND RISKS FOR DEMOCRATIC ELECTIONS An overall analysis of the sub-Saharan African region, where elections are scheduled in several countries, shows different approaches in responses to the Covid-19 crisis and elections, as well as various challenges and risks for credible, peaceful and safe elections, some of which are detailed here.
In some cases, the pandemic has led and could lead States to take decisions that may impact the credible, peaceful and safe nature of elections. Decisions have already been made in some countries, to maintain or postpone elections, while others are still pending.
In any case, however, there is a real risk that the pandemic will be used for political purposes, including from authoritarian regimes, where maintaining or postponing elections may serve individual political interests, regardless of considerations for the safety and security of the population.
In Burundi and Tanzania for instance, where parliamentary and presidential elections are still on the agenda, for May and October 2020 respectively, civic space has been dramatically reduced since 2015, when the two current presidents were last elected or re-elected. In Burundi, where the current President agreed not to run for a fourth term after attempts to do so, political and public gatherings are ongoing in the context of the official election campaign with very few protection measures taken. Furthermore, the Government of Burundi, on 8 May 2020, issued an order requiring electoral observers coming to the country to undergo a 14-day quarantine period.
In Tanzania, where the incumbent president has declared his intention to run for a second term, voter registration is being updated and the election campaign scheduled to start in July. Tanzania has been criticised for its management of the pandemic, including for not restricting large gatherings and not sharing information on coronavirus figures.
Decisions on elections in times of crisis can therefore pose a dilemma between civic responsibility and health protection, when people want or are encouraged to vote but are also concerned about their health, and when no appropriate measures are put in place in a timely manner. As a matter of fact, there is a risk that the holding of elections in some countries helps or increases the spread of the pandemic and seriously put the lives and health of the population at risk, especially where health services are very poor and as a result, ill-equipped for the crisis.
Furthermore, maintaining elections in times of Covid-19 without sufficient protection measures might make it harder to vote, since the electorate, including for the diaspora, may be restricted in its movement, and may be more reluctant to vote for fear of the virus, which could lead to a low voter turnout, and in the end, may further challenge the credible nature of elections.
The principle of fair elections may also be undermined by complications in the voter registration process. This process, already a sensitive matter before any election, may not be completed properly and on time due to the spread of the virus and measures restricting freedom of movement.
In Uganda, where the current president has been in power since 1986 and has already amended the Constitution to extend the age limit for presidential terms, the High Court has been petitioned to postpone the presidential and parliamentary elections, initially scheduled for the first half of 2021, for five years over the coronavirus disease. Despite the real threat posed by the virus, elections should not be postponed to allow the regime to remain in power, which could, in turn, pose a threat to an environment conducive to the holding of credible and peaceful elections.
The case of Ethiopia, inter alia, raises the question of managing the interim period, between the end of a Constitutional mandate and the beginning of a new one. Two weeks after the first case of Covid-19 was detected in the country, the authorities declared a state of emergency, and parliamentary elections to elect the Prime Minister, initially scheduled for August 2020, have been postponed until "the pandemic is over".
This kind of situation could lead to unpopular initiatives to amend the Constitution to fill the gap, which could spark unrest, in countries already affected by fragile political transition and community tensions. In the case of Ethiopia, the postponement of elections has triggered a constitutional crisis that the State hopes to resolve. However, the process is fraught with concerns over public participation and this needs to be resolved delicately in light of the challenges that the country is already confronting with regard to its fragile political transition and ongoing community tensions.
According to Sheila Muwanga, FIDH Vice President and member of the Foundation for Human Rights Initiative (FHRI) in Uganda: “It is essential that the government responses to combating Covid-19 be human rights sensitive. Parliaments and ordinary citizens should be allowed to debate any proposal to conduct or postpone elections”.
Popular discontent and unrest could result from decisions made on elections in countries where the trust and confidence in the State is already very weak, since most people want to vote but not at any cost. Further, unrest and discontent from the population could trigger a violent response from the authorities. This is particularly true in authoritarian regimes where restrictive measures put in place to curb the spread of the virus have already resulted in serious human rights violations, including by the excessive use of force.
In West Africa for instance, widely criticised parliamentary elections and a referendum on the Constitution was held in March 2020 in Guinea. The constitutional change ushered in by the referendum is believed to be a way for the President to seek additional presidential mandates despite the fact that he has already served twice, which is the legal limit stipulated by the Constitution. The referendum was held in a context of general unrest and widespread distrust in the government. Opposition parties boycotted the election, and independent election observers were absent.
In Malawi, while the Supreme Court has affirmed that there will be a re-run of the Presidential election on 2 July 2020, the credibility of this election hangs in the balance as the country’s measures against Covid-19 continue to unfold. The country has been politically contested since the initial election which was annulled by the Malawi judiciary in February 2020. Fear is spreading that the state of emergency could imperil the organisation of this election and lead to more contestation.
Decisions on elections that stem from the pandemic context could pose an additional risk to the protection of civilians and stabilisation of countries and regions where armed conflict is ongoing. In Central African Republic (CAR) for instance, where presidential and parliamentary elections are planned for December 2020, rumours about a possible amendment to the Constitution in favour of a two-year extension of the current presidential term are circulating widely. In Burkina Faso, presidential and legislative elections are slated for November 2020, but many delays in the election organisation process have been observed due to the spread of Covid-19 in a country that is already fighting against violent extremism. These delays could result in an overall postponement of the elections.
Decision-makers should pay special attention to the potential implications for use of new technologies, such as online voting, with regard to election transparency. This could be used to manipulate votes, and further inspire mistrust when the bond of trust is already weak, if the electorate is not properly informed in this regard.
Moreover, decisions made about elections and elections held in this context may suffer from little attention at national, regional and international levels, as the virus is a primary concern for many and dominates the media coverage. The measures adopted to fight the virus may make electoral observation, which constitutes an additional safeguard for the holding of democratic elections and the protection of human rights and fundamental freedoms, more difficult or even impossible, especially when borders are closed, and countries remain under lock-down, as well as when a quarantine period is imposed on entry into the country.
« The international and regional community must remain mobilised on the issue of elections in Africa, even in the midst of the Covid-19 pandemic »
Drissa Traoré, FIDH Secretary-General and member of the Mouvement ivoirien des droits humains To this end, FIDH calls upon:
States with upcoming electoral deadlines:
- To ensure an environment conducive to credible, peaceful, and safe elections at all times, including during the Covid-19 pandemic by:
• Putting an end to human rights violations, including against representatives of civil society organisations;
• Ensuring that measures restricting individual rights and liberties under exceptional circumstances meet certain conditions such as necessity, proportionality, time limitation and non-discrimination;
• Ensuring the protection of the health of all elections’ participants, by taking appropriate measures before, during and after the elections;
• Refraining from making politically expedient but extra-legal decisions related to electoral process;
• Adopting an inclusive and consultative approach to elections, by including at most civil society in any decision-making related to elections;
• Providing information and communicating on election-related decisions, through the medias and civil society.
The international community, including the African Union, the United Nations, and European Union, to:
• Stay abreast of the electoral situation and decisions in the context of Covid-19, and closely monitor situations at risk;
• Call on States to respect their national, regional and international obligations with regard to human rights and electoral processes;
• Publicly condemn States if human rights violations are committed before, during and after elections, and call on them to fight the impunity of those cases;
• Advance a holistic election monitoring approach through bodies such as the African Union Peace and Security Council, the African Peer Review Mechanism and the African Commission on Human and People Rights, to foster constructive dialogues among all stakeholders with regard to electoral preparations and investing in local-led observation efforts that are long-term in nature as opposed to focusing on the election day alone;
• Apply the principles of the African Union Constitutive Act in relation to unconstitutional changes in government as well those enshrined in the African Charter on Democracy, Elections and Governance, by imposing appropriate sanctions (including the suspension of membership) on States that undertake elections which fail the test of credible;
• Take, maintain or extend the European Union individual restrictive measures and any other targeted individual sanctions to perpetrators of human rights violations and/or acts undermining democracy in the electoral context;
• Call on the International Criminal Court to speak out publicly to underscore that crimes committed in some situations already under scrutiny by the Court could fall within its competence and that their authors should be held responsible.