Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The African Court on Human and Peoples’ Rights held that State parties may decide how to conduct elections in the context of a public health emergency or a pandemic, but only if the electoral organs consult with health authorities and political actors, including representatives of civil society, and adhere to international human rights law. The Pan African Lawyers Union had submitted a request for advisory opinion as 22 countries in Africa were due to have elections in 2020, during the Covid-19 pandemic. The Court highlighted the importance of regular, transparent, free, and fair elections and stressed that postponement of elections constitute a limitation of rights and so must accord to the principles that it be done in accordance with law, be for a legitimate purpose and be necessary in a democratic society.
In June 2020, the Pan African Lawyers Union (PALU), based in Arusha, Tanzania, submitted a request for an Advisory Opinion to the African Court of Human Rights. It noted that 22 African Union Member States were scheduled to hold presidential and/or legislative and/or local government elections in 2020, and was concerned that measures taken by AU member states during the Covid-19 pandemic negatively impacted election observation and campaigning.
PALU sought an opinion from the Court on three issues: 1) the states’ obligations “for ensuring effective protection of the citizen’s right to participate in the government in the context of an election held during the pendency of a declaration of a public health disaster or emergency, such as the Covid-19 crisis”; 2) “the legal standards founded in treaty law applicable to the State Parties that choose to conduct elections vis-à-vis Member States that choose not to conduct elections during the pendency of the Covid-19 disaster or emergency measures”; and 3) “the legal standards applicable to States precluded by reason of a public health emergency, such as the one caused by the Covid19 pandemic, from organising elections as the basis of the democratic mandate of government”. [para. 8]
In April 2021, the SOAS Centre for Human Rights Law, an organisation based at the School of Oriental and African Studies (SOAS) at the University of London, submitted an amicus curiae brief.
The decision was delivered by President Aboud Imani, Vice President Tchikaya Blaise, and Judges Kioko Ben, Achour Rafaa, Mengue Suzanne, Mukamulisa M-Therese, Chizumila Tujilane, Bensaoula Chafika, Anukam Stella, Ntsebeza Dumisa, Sacko Modibo, and Registrar Eno Robert of the African Court on Human and People’s Rights (the Court). The central issue for the Court’s consideration was regarding the obligations of AU Member States in ensuring the participation of citizens in the government through elections.
PALU argued that the conduction of elections was instrumental in guaranteeing the right to effectively participate in the government and adhered to the standards of good governance enshrined in treaty law. It submitted that the measures taken by Member States to protect the right to life during Covid-19 restricted “freedoms of movement, assembly, association, and information, and also the right of citizens to effectively participate in the governance of their respective states”, which constrains “democratic competition” and “preclude[s] election observation”. [paras. 57-58] PALU argued that “in the absence of formal derogations”, State Parties had an obligation to safeguard the citizens’ right to effectively participate in the government of their countries. [para. 59]
The SOAS Centre for Human Rights Law accepted that AU countries could choose when to hold elections in public health emergencies, but that “what matters” is that these elections are held in accordance with the international treaty laws. [para. 49] It argued that any Covid-19-related restrictions should be “kept to the absolute minimum necessary”. [para. 63] The SOAS Centre for Human Rights Law submitted that if there was a postponement, there had to be clarity on who had the authority to take decisions on the new dates, mechanisms and other related matters. It mentioned concerns that had been raised by election experts about the “lack of consultation with relevant actors and transparency” in taking decisions, and referred to the European Convention for the Protection of Human Rights and Fundamental Freedoms which sees a postponement as a “restriction to the periodicity of elections”. [para. 89-90]
The Court highlighted that the AU Member States had “adopted democracy as their political system and are committed to respecting the principles of the rule of law and to protecting human and peoples’ rights.” [para. 50] It explained that to fulfill these obligations regular conduction of transparent, free, and fair elections was necessary and that this enables the electorate to “regularly evaluate and politically sanction the performance of those elected officials, through universal suffrage”. [p. 51]
In discussing the powers to make decisions on elections, the Court noted that it was permissible fort State Parties to decide when to conduct elections – “within the timeframe provided for by law” – if they believe it possible, “notwithstanding the situation of the Covid-19 pandemic”. [para. 51] It added that competent state bodies had the power to postpone elections in accordance with its domestic law and that this power was derived from the African Charter on Human and People’s Rights (African Charter) and the African Charter on Democracy, Elections and Governance (ACDEG). The Court added that when there are no provisions that specifically address the postponement of elections, the provisions that govern the “scheduling and holding of elections” would be applicable, and that “those who can schedule elections also must be able to call them off or postpone them if the conditions for holding the elections are not met because of the emergency situation, as is the case with the Covid-19 pandemic”. [para. 53] In situations of health emergencies, although the decision on whether to conduct elections remained with the electoral organs, consultation with health and political authorities and civil society “is necessary to ensure the inclusiveness of the process”. [para. 54] The Court described the ECOWAS Protocol on Democracy and Elections as an “important source of inspiration” in getting agreement from political actors when making significant changes to election laws within six months before the elections. [para. 55]
The Court accepted that holding elections during emergencies like the Covid-19 pandemic, where a disease could easily spread through human contact and objects, necessitated appropriate measures, without undermining the integrity of the electoral process. It noted that although it could not develop policy guidelines for States on how to conduct elections in a situation of emergency because it was a judicial body it could “share … legal standards applicable to restrictions or suspension of rights under the Charter and other human rights instruments”. [para. 72] Commenting that as the African Charter did not provide provisions for derogation of rights in emergency situations, the Court emphasized that State Parties that chose to conduct elections during a state of emergency, must respect human rights and that any measures must conform to the provisions of Article 27(2) of the African Charter, which states that “[t]he rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality, and common interest” and Article 2 of the African Charter, which prohibits discrimination. The Court also referred to Article 4(1) and (2) of the International Covenant on Civil and Political Rights (ICCPR) to highlight that the measures restricting human rights should be proportionate and non-discriminatory.
In assessing the aims of the restrictions on elections, the Court stressed that they must pursue a legitimate aim, and that they must be “appropriate to the intended purpose, including their territorial extent and duration in time” and be necessary in a democratic society. [para. 79]. The Court added that measures restricting rights “must not negate the essential content of the restricted rights”. [p. 80]
Applying these principles to the present case, the Court held that there were some aspects that formed the essential content of the right of citizens to freely participate in the government through elections, including “campaigning, fair and equitable access to the State-controlled media; the monitoring of the electoral process by candidates, political parties, and the competent voter registration public institutions; the secret ballot; participation in the process of voting, counting and publication of the election results by political parties, candidates and any other relevant actors for the transparency of the elections; the possibility of contesting the results before the competent administrative and judicial bodies”. [para. 80] The Court held that these aspects could not be suppressed, even in an emergency situation such as the Covid-19 pandemic, “without undermining the integrity of the electoral process”. [para. 81]
The Court noted that the right of movement of persons during the election period should be given particular attention and restrictions should not be absolute and other measures should be taken to mitigate restrictions such as virtual meetings, requiring better communication networks, and allowing wider use of online platforms like social media by lifting restrictions. The Court emphasized the need for protective measures like social distancing, mask-wearing, and sanitization during polling and crowded electoral events, and that these measures should be non-discriminatory without creating an advantage for governing party or candidates. The Court stated that elections should ideally stick to the electoral schedule, and in emergencies like the Covid-19 pandemic, State Parties had the authority to choose election timing while ensuring public health and election integrity.
On the obligations of State Parties when deciding to postpone elections, the Court reiterated that elections must be held regularly on the scheduled timeframe, and postponements, therefore, constituted an “exception to this principle”. [para. 91] The Court held that the Charter and ACDEG defer to domestic law for defining conditions regarding the participation of citizens in the government through elections, which includes election postponement, as those instruments did not directly regulate these aspects, and so it was the responsibility of domestic law to establish criteria for postponement and the process for situations where the term of office of elected officials expires without elections. The Court emphasized that these domestic regulations need to align with international standards to ensure that the rights of citizens were not completely nullified. It added that domestic regulations on criteria for election postponement are subject to specific conditions: “the postponement must be made in the application of general law, must aim at the legitimate purpose, be proportionate to the intended purpose, and must not undermine the essential content of rights”. [para. 98]
The Court held that the postponement of elections is legitimate if it safeguarded public health and allowed for “the creation of conditions for the holding of transparent, free and fair elections”. [para. 101] It stressed that, in order to be proportional, the postponement should be a last resort and that “the deferral period cannot be used to undermine the obligation of regular legitimization of the elected officials and become a form of unduly prolonging their term of office.” [para. 101-103]
The Court acknowledged that elections could be postponed while still being held before officials’ terms end, by merely adjusting the electoral schedule without affecting the organ’s tenure, but that if elections occur after terms expire, it leads to a situation of “expiration of the organs”. [para. 104] As domestic law governs election postponement, it must also determine how to handle expired terms, including interim replacement mechanisms or caretaker management arrangements. The Court noted that each State Party should ideally have legislation for such cases and if not, new legislation by competent bodies was needed, involving consultation with other political and social players.
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The Court recognized the importance of transparent, free, and fair elections as a means for citizens to participate in their government and evaluate the performance of elected officials, and acknowledged that restrictions imposed due to emergencies should be minimal, respecting citizens’ rights as much as possible. The Court’s emphasis of the need for consultation with health authorities, political actors, and civil society in making decisions related to elections during emergencies suggests that the process should involve open discussions and considerations of various viewpoints which aligns with the principles of freedom of expression and democratic participation, ensuring that different voices are heard and taken into account in shaping election-related decisions.
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