On July 16, 2021, the African Court on Human and Peoples' Rights issued an advisory opinion on the right to participate in the government of one's country in the context of an election held during a public health emergency or a pandemic, such as the COVID-19 crisis. Filed by the Pan African Lawyers Union (PALU) in June 2020, the request sought the Court's opinion on a number of issues relating to the impact of a health emergency on electoral processes in African Union member states. According to a press release from the Court, the Court grouped the issues identified by the PALU into three main categories:
- How should states determine whether or not to conduct elections in the context of a health emergency or a pandemic?
- What obligations to states have to ensure their citizens' right to participate in the government of their countries?
- If a state decides to postpone elections because of a health emergency or pandemic, what obligations arise as a result?
With regard to the first issue, the Court noted that the African Charter of Human Rights (as supplemented by the African Charter on Democracy, Elections and Governance) leaves it to domestic law to govern the conditions under which elections are held and therefore, it is also for the states to determine whether or not to postpone an election in an emergency situation. However, a postponement should be an exception to the principle that elections must be held regularly, within the required timeframe. In making such a decision, the Court must take steps to ensure that, if an election is held during such a situation, it is safe and inclusive.
Therefore, on the second issue, the Court reiterated that states must take measures to ensure that any elections held are conducted in such a way so as to prevent transmission of the disease, while still maintaining the "integrity of the electoral process." Such measures might include restrictions on the right of movement of candidates and voters, registration rights, and the right of access to information, among other rights. The Court then pointed to guidelines issued by various organizations, including the WHO, which address measures that can be taken to mitigate the spread of disease during elections. According to the Court, it is not within its role to set such guidelines; rather, it is for human rights-supporting organizations.
However, the Court pointed to the ICCPR to emphasize that any restrictions must be set out in law, proportionate, and non-discriminatory. They must also not adversely impact the essence of the rights at issue. On that point, the Court found that the essence of the rights of citizens to participate in the governance of their country includes the following aspects: the ability to campaign, "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 vote 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, if appropriate." The Court placed particular importance on the right of movement of persons during the election period.
On the third and final issue, the Court reiterated a set of specific criteria for states to apply if elections are postponed. In particular, the Court held that any postponement must comply with Article 27(2) of the African Charter and Article 4(1) of the ICCPR. In practice, this means that if a state invokes an emergency to postpone elections, it must be set forth in the law and the postponement must be for the purpose of "protecting the health and life of the people." The Court cautioned that a postponement must not be used as a way of "unduly prolonging their term of office." It concluded by noting that states must determine the appropriate standard if a situation arises where an official's term of office expires pending a postponed election.