Elections are all about trust. For electoral results to be accepted as legitimate, procedures and mechanisms are put in place to address objections, complaints or challenges that different actors in the process might have. When the integrity of elections is called into question, there needs to be effective process of dealing with complaints to sift the facts and determine whether proper electoral procedures were followed as prescribed in laws and regulations. In this way, the integrity of the electoral process is guaranteed and the political rights of citizens safeguarded.
The legal framework in Vanuatu provides for a series of mechanisms and channels to process various forms of inconformity regarding the process. It is important for voters, parties and candidates to be aware of those mechanisms, as inadequate information understanding can result in people not being fully aware of their rights, with the potential of impacting negatively on the credibility of the process.
It is important to differentiate between the nature of electoral disputes: whether an electoral objection or complaint, often directed to and dealt with by the electoral authorities; a legal challenge, usually handled by the relevant level in the judiciary but not exclusively; and appeals before the courts. In Vanuatu, the legal framework allows for different electoral disputes and their mechanisms for resolve. In summary, there are: a) objections (to inclusion on the voter register); b) complaints (on the behavior of electoral officials or other electoral actors); c) allegations of criminal offences. and d) petitions (legal challenges to the electoral results).
OBJECTIONS TO THE VOTER REGISTER
Any person may present the PEO with an objection if he considers that his name has been wrongly omitted from an electoral list and may submit such evidence and declarations to the PEO as he considers appropriate. If the PEO finds that the claim is valid, he can order that the petitioner’s name and details be included in the electoral list and issue him with an electoral card.
A petitioner who is not satisfied with the PEO’s decision may appeal to the EC within 48 hours of notification, by lodging it with a registration officer. The officer forwards the appeal without delay to the EC, who may either dismiss the appeal or not. The EC’s decision cannot be questioned in any court.
The PEO may remove the name of any person from an electoral list if, for any reason, he considers that that person should not be registered; the person needs to be notified without delay and the person needs to surrender any electoral card issued to him. The person may appeal against such removal to the EC, within 48 hours of notification of the removal by lodging it with a registration officer. The EC may either dismiss the appeal or not, and its decision cannot be questioned in any court.
COMPLAINTS AGAINST ELECTORAL OFFICERS
- entering in any record, return or other official document any information that he/she knows or has reasonable cause to believe to be false, or does not believe to be true;
- permitting any person, who is not disabled, to have access to assisted voting;
- to refuse any person with disabilities, to have access to assisted voting;
- preventing a registered voter to cast his/her vote at the assigned polling station;
- rejecting, or refusing to count, any ballot paper which in fact is validly cast for any candidate;
- without reasonable cause, acting or omitting to act, in breach of his official duty.
Among the electoral offences, the following are included:
- defacing and destruction of cards, documents and notices;
- forging declaration of candidatures;
- being in unlawful possession of ballot papers;
- destroying or interfering with sensitive electoral materials;
- voting in an unauthorized manner (in a non-designated polling station, or voting more than once);
- personation (voting as some other person whether that other person is living or dead or is a fictitious person);
- treating (giving, providing or paying voters for the purposed of influencing voters;
- undue influence;
- making false statements about candidates;
- engaging on activities prohibited on polling day; and
- compromising the secrecy of the vote.
Persons accused of committing electoral offences must have the chance to ensure that a full defense can be assembled. A conviction must meet the standard of criminal proof - beyond reasonable doubt. Appeal processes are provided for in the law.
An electoral petition is not be valid unless presented within the stipulated time (21 days of the publication of the electoral results in the Gazette). The person lodging a petition must make a deposit of VT 20,000 as security for costs; the deposit is to be returned to the petitioner after the petition has been heard, although the Supreme Court may deduct from the deposit any costs ordered to be paid.
Election petitions must be presented in writing, specifying the grounds upon which the election is disputed. The proceedings of the Court are conducted in English, French or Bislama, according to the choice of the petitioner, and interpreters are to be provided by the Supreme Court.
On hearing a petition, the Supreme Court may: a) declare the election void; b) declare a different candidate (other than the person whose election is questioned) as duly elected; or c) dismiss the petition and declare that the declared winner was duly elected.
The Supreme Court may declare void an election if : a) it is proven that bribery, treating, undue influence or other misconduct prevailed so extensively that they may be reasonably supposed to have affected the result of the election; b) there has been non-compliance with the provisions of the law, in the conduct of polling or in any other matter, so that the results of the election were affected; c) the candidate was at the time of his election a person not qualified or disqualified for election; or d) there was such irregularity in the counting of the votes that the result of the election was affected.
The election of a candidate is declared void if he/she is convicted by a Court of committing a corrupt practice or of attempting or conspiring to commit a corrupt practice. When an unsuccessful candidate claims victory on the grounds that he had a majority of valid votes, the Supreme Court may direct an examination of the counted and invalid votes and of the counting of votes.
The decisions of the Supreme Court are communicated without delay to the petitioner and to all persons concerned. There are no appeals from a decision of the Supreme Court on electoral petitions.