What are the minimal conditions under which a free and fair presidential election could be conducted in Belarus?
In the context of Belarus’ current political crisis, demands for minimal conditions needed for the holding of free and fair presidential elections in Belarus could be made by the Belarusian public and the opposition if snap elections were to be called. This paper proposes recommendations for all stages of the election cycle and concludes that a competitive election could be held in Belarus without changes to existing laws if the government demonstrates the necessary political will to safeguard certain minimal conditions.
Summary of findings
Looking at the broader context of political rights that need to be protected in order to hold democratic elections, the main problem is not in the law. Rather, it is in the government’s abuse and violations of the legal protections that Belarusians should enjoy under their Constitution, imperfect as it is. While the government accuses the opposition and protesters of undermining law and order, the opposite is the case; the government violates law and order on a daily basis, through arbitrary arrests, torture, persecution, intimidation and harassment.
In order to create conditions conducive to the holding of democratic elections, it would be sufficient to merely respect the Constitution and the laws of the country. Some restrictions that could potentially hinder the holding of free election campaigns, for example the requirement to receive prior permission to hold public demonstrations, could easily be interpreted in a democracy-friendly way, providing for the right of freedom of assembly and allowing for campaigning without fear or pressure. In any transition negotiation, basic respect for fundamental rights and freedoms would need to be the central point.
One other key condition that depends on political will, rather than legislative reform, is the replacement of the current election administration, and primarily of the Central Election Commission (CEC). The level of public approval of the CEC is extremely low, as the Commission has been engaged in manipulating elections for over two decades. Incumbent CEC members would need to be replaced with competent and impartial people who enjoy the confidence of all stakeholders. There are lawful avenues for doing so, provided that political will for such a change in personnel is assured in negotiations.
With Belarus’ past electoral patterns in mind, an impartial and objective candidate registration process is another essential condition for a free and fair presidential campaign. The disqualification of potential contestants based on extremely onerous and rigid requirements for the collection of support signatures and the submission of declarations of property and income have been the most effective instruments used by the Belarusian authorities to exclude opposition candidates. Although the simplification of the signature collection requirements would, in the long term, require reform of the election law, the process could be corrected in the short term under the existing law, if election commissions were guided by principle of inclusiveness and abandoned the hyper-formalistic and biased approach to the verification of signatures. A change in attitudes and mindsets, and not a change in law, would also be enough to guarantee that potential candidates were not selectively disqualified for “inaccuracies” in their declarations. Only essential inaccuracies, as required by law, i.e., any deliberate and significant omissions capable of misleading voters, should be grounds for disqualification.
As the Belarusian election law grossly under-regulates election day procedures and fails to provide essential safeguards, the new CEC would need to enact regulations to fill in the gaps and guarantee procedural safeguards for voting (including early voting), the counting and tabulation of votes, and the announcement of results. Formulated properly, such regulations would be sufficient. They could be guided by good practice recommendations consistently made by ODIHR and Belarusian observers. Changes to the law would not be necessary.
Past abuses have created widespread mistrust in the practice of early voting, which has usually taken place over the space of many days and without legal safeguards for integrity and transparency. While the law provides fer early voting, the period for this could be reduced to a few hours on the day before election day, in response to specific needs.
Unhindered election observation over the entire process, from candidate registration to the counting and tabulation / aggregation of votes, as well as the publication of results, would have to be among the most essential preconditions for the holding of a free and fair election. Given the efforts civil society can be expected to make to mobilize the public to take part in total scrutiny of the electoral process, the elimination of long-standing constraints on election observation would be as crucial as any other condition listed in this paper. The installation of video cameras and the online streaming of the electoral process might be an important, albeit not sole, arrangement to enhance election observation. There is nothing in the current law that prohibits such practices.
Equal access for contestants to the media is a requirement in the current law so, again, all that is required for this is the necessary political will. State-owned and state-funded media outlets would need to provide balanced coverage of candidates’ campaigns, and private media, individual journalists and bloggers would have to be protected from intimidation and harassment.
The same would be true in order to ensure the impartial resolution of election disputes, as the law provides for an independent election administration and judiciary, and nothing in the existing law warrants the political instructions to the courts that have long been the pattern in Belarus. Thus, the authorities would need to refrain from instructing either election commissions or courts about the resolution of election disputes.