The Importance of ADR In Election Disputes
The goal of Alternative Dispute Resolution is to develop means for interested parties to reach agreement. ADR can range from informal, as in meetings with a convener or mediator, to formal processes such as arbitration in which binding decision are made. The type of ADR used in election resolution will depend on the interests to be protected. As Professor Green has demonstrated, mediation is even appropriate to resolve post-election procedural disputes.
The field of ADR as it applies to election disputes is fairly new. Nonetheless, it can provide a means to resolve many disputes quickly and efficiently, particularly in countries without a strong or independent judiciary. The development of electoral systems that produce free, fair and credible elections requires managements systems that can transform conflict and violence into the peaceful development of political systems.
Country application of the ADR processes to resolve disputes are as varied as the legal and political systems within those states. Despite this variety of approaches, several common features appear. First, most Electoral ADR (or "EADR") systems invoke the loosely defined concept of the Rule of Law, which, as noted above, attempts to provide "predictable rules, derived from established principles for determining election outcomes." Second, the EADR process used must produce timely resolution. Third, the EADR process must provide an impartial arbiter. Finally, the outcome of the EADR must create remedies that are enforceable. The only departure is that most mediation to be successful ---even in the political context--- is confidential with only the agreement be made public.
Not all EADR methods, however, may be appropriate for all disputes. Many fundamental rights established in international and national law involve rights which must be guaranteed by judicial intervention, including the right to political association, the right to peaceful assembly, to move freely to campaign, the right to be free from coercion or threats of violence during the political process, the right to the freedom of expression and, of course, the universal right to vote and to be elected at genuine periodic elections.
The United Nations Human Rights Commission (UNHRC) asserts that non-discrimination and equality principles require that everyone has a right to equal access to the courts. The UNHRC interprets this right to mean that everyone is entitled to access to a competent, impartial and independent tribunal at some point in the process. This statement does not, however, mean that the EADR methods do not foster the just and efficient resolution of disputes. While many EADR processes, or even the decisions of Election Management Bodies (EMBs), may not meet the criteria of UNHRC General Comment 32, or the requirements of a "competent, independent and impartial tribunal" under Article 14 of the ICCPR, most ADR processes are intended to avoid conflict through means agreed to by the parties.
Even where fundamental rights are involved, ADR processes may be helpful in avoiding actual conflict, as long as disappointed parties who do not reach agreement have a right to seek judicial resolution to address fundamental rights. While the development of rights to universal suffrage, and to participate in the electoral process are guaranteed by international conventions, the enforcement of these rights is the responsibility of individual states, who can, where appropriate and consistent with national and international norms, implement alternative avenues to judicial resolution.
South Africa, for example, uses ADR in labor disputes, access to justice, service delivery and in the conduct of its elections. The South African electoral processes include communitybased conflict management structures and political party liaison committees. In 1999, South Africa's Independent Electoral Commission established a conflict management program to address access for voters, candidates and political party intimidation and the destruction of campaign materials. The program has been successful in resolving electoral disputes and reducing electoral-related violence, by using experts in ADR who are trained to address electoral issues prior to, and during the election. The program's success is summarized as follows:
The programmed has proved effective and the number of challenges coming before the courts, and electoral disputes in general, has diminished. There were, for example, 1113 disputes in the 1999 elections, including disputes over access for voters, candidate or political parties being impeded by intimidation and violence, or the destruction of campaign publicity. The number of such disputes fell to 314 in the 2000 elections and 253 in 2004.
In Nigeria, the Independent National Electoral Commission (INEC) is both regulator and umpire. Under Article 156 of the 1999 Constitution, INEC is an independent federal commission with the responsibility of conducting federal and state general elections. (State- independent commissions organize and conduct local governmental elections in each of the 36 states). While elections are regulated on paper, most electoral irregularities are viewed with impunity. This lack of adherence to the rules presents INEC with significant challenges if it is to ensure free, fair and credible elections.
INEC is responding by promoting pre-election preventative mediation which I have worked to create with INEC. INEC efforts are in direct response to the African Union that: "It is imperative that elections are transformed into conflict management tools rather than triggers for violent conflict, war, and political instability." One of INEC's conflict management tools is the recognition that traditional form of ADR are adaptable and appropriate to the resolution of electoral disputes.
INEC recognizes that EADR, when properly utilized, can increase political stability, decrease the number of complaints before INEC and the Courts, and most significantly, reduce election-related violence. INEC, through the development of various guides and a series of internal manuals and training exercises has undertaken to systematically provide direction, guidance and training on the processes for resolving election-related disputes. As part of these undertaking, INEC is asking the political parties to include in their constitutions and party documents a commitment to use mediation and other EADR processes to resolve intra-party disputes.
INEC's approach to electoral disputes recognizes that dispute resolution requires the development of culturally-based collaborative processes which identify the parties' interests and resolve conflicts between them. These conflicts can result from differences in values, desires to control limited resources and opportunities, and psychological needs for political power and authority. The resolution of electoral disputes also requires the awareness by stakeholders of the EADR processes and the development of skills by stakeholders in the effective use of EADR methods.