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1/6/2002
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The Egyptian Organization for Human Rights
"The 2005 presidential election: a critical analysis"
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10/9/2005
Introduction
The first multi-candidate presidential elections were carried out following the amendment of article 76 of the Constitution. The amendment states that the presidency will be disputed by more than one candidate rather than the previous arrangement of the referendum which presented voters with one candidate chosen by the People's Assembly. While this is a step forward, some political parties such as the Nasserite and Tagammu parties boycotted these elections in protest at the manner in which article 76 was amended and the final form of the amendment itself. The revised article imposes crippling conditions on the right to stand for election to the post of president while simultaneously violating established constitutional principles concerning equality in the conditions imposed on independent candidates and those representing political parties. In addition, it does not allow the PEC decisions to be challenged before the judiciary.
The 2005 presidential elections were carried out on the 7th September and contested by ten candidates representing political parties. A number of independent candidates' applications to run were refused because of their failure to fulfil the requirement that candidates obtain the support of at least 250 members of elected parliamentary institutions and local councils. This represents a flagrant attack not only on the right to stand for election but also on the right to vote. These rights are fundamental rights enshrined in article 62 of the Constitution. The Supreme Constitutional Court acknowledged their fundamental nature and their interdependence.
The PEC, formed under article 76, was one of the major obstacles to a free and fair election because of its flawed makeup, broad and vaguely defined competencies, the fact that its decisions are not subject to judicial appeal and statements by its obstinate officials.
The PEC almost jeopardised the entire electoral process. It is sufficient to mention here the PEC decision barring a large number of judges from carrying out election supervision and replacing them with government lawyers. The PEC in addition refused to allow a number of civil society organisations from monitoring the electoral process inside polling stations, and appealed the Administrative Court's decision recognising the right of these organisations to do so. It eventually conceded only two hours after the start of voting when it publicly announced that civil society monitors would be allowed into polling stations. No clear reason was provided for this change of heart.
As part of EOHR's role in election monitoring, the organization along with 21 other human rights organisations formed the Civil Society Election Monitoring Coalition. Ten member organisations dedicated their efforts to the electoral process and trained some 2,500 monitors from 22 governorates covering 329 main polling stations - some 50 % of subsidiary polling stations, EOHR trained 720 volunteers in 19 governorates; Cairo, Qalyoubiyya, Giza, Menoufiyya, Mansoura, Fayyoum, Beni Souef, Alexandria, Buheira, Ismailiyya, Sharqiyya, Port Said, Damietta, Arish, Qena, Sohag, Aswan, Minya and Assiut. This training began only a few weeks before the presidential election process.
EOHR sent reports detailing what happened from the beginning of the electoral process until the vote count based on its monitoring. EOHR based its report on these accounts. It monitored various forms of violations throughout Egypt, but the scale of these violations was far smaller than those which were taking place since the start of the 1980s, when transgressions by the security apparatus were far more open. While these apparatus did not interfere in the electoral process EOHR holds the Ministry of the Interior responsible for holding the presidential elections according to faulty electoral registers which featured repeated names and mistakes in the spelling of voters' names. Voting numbers were also repeated and names not arranged in alphabetical order in some polling stations which deprived millions of the right to vote. In addition to problems with the electoral register, EOHR documented in its monitoring in 19 governorates various degrees of bias towards the NDP candidate at the expense of opposition candidates during election campaigning and on the day of the vote itself. NDP representatives were in addition found inside polling stations where they campaigned for the NDP candidate and encouraged voters to vote for him - just one example of violations documented in EOHR's report.
The performance of the judiciary highlights the importance of complete judicial supervision of the elections, and reaffirms the legitimacy of judges' and NGOs' demands that judicial supervision be carried out by bench judges rather than members of the administrative prosecution office and the government lawyers.
EOHR confirms that while the 2005 presidential elections were an important step on the path towards political pluralism and democracy in Egypt, this step must be completed through the immediate formation of a national commission composed of political party representatives, civil society activists and constitutional law experts who will examine amendment of the Egyptian Constitution, an end to the state of emergency and application of exceptional laws, and recognition of the freedom to form political parties and NGOs. The importance of a separation between the state institutions and the ruling political party cannot be understated, and a complete separation of the three powers with the aim of ensuring free and fair elections is equally crucial.
EOHR's report "The 2005 presidential election: a critical perspective" contains an evaluation of the 2005 presidential election, the political environment in which it was carried out and the constitutional amendments which preceded it. It also provides examples illustrating the scale of violations and transgressions committed both in and outside polling stations through the use of public transport vehicles to transport groups of people to vote for one of the candidates, election bribery, which means offering people money or goods in return for voting for a certain candidate, the use of indelible ink, voting by voters in polling stations other than those with which they are registered, voting more than once, faults in the electoral register and an evaluation of the performance of the judges who supervised polling stations.
The report concludes with a set of recommendations concerning the electoral process from start to end, including electoral registers, state institutions, judicial supervision of the elections and the legislation and decrees governing the electoral process which will be presented by EOHR to the president, People's Assembly and Shura Council, and the different concerned parties.
Summary
The PEC
Since the start of its activities, the PEC has faced several criticisms with regard to its composition, competencies, the decisions it has issued and finally statements by PEC officials with regard to judicial supervision of the elections. In the 20th August 2005 edition of the daily Al Ahram, Counsellor Mamdouh Marei, head of the PEC stated:
"The Constitution and legislation provide that judicial supervision encompasses only main polling stations; the law does not require a judicial presence in subsidiary polling stations. There are 329 main polling stations, and if make a simple calculation by multiplying the number of main polling stations by the number of judges the result is 650 and 700 judges. This figure is the number of judges required according to the Constitution and legislation. The other 54,000 subsidiary polling stations throughout Egypt do not have to be manned by a judge."
Refusal of monitoring
Civil society organisations - in particular those intending to carry out monitoring - were shocked by the PEC head's announcement that the PEC would not accept any form of monitoring, whether by local or international groups, despite the fact that the concept of national monitoring had previously been put forward to the PEC. Regardless of these promises, these statements reflect negatively on the situation in Egypt on an international level, especially since Egypt has repeatedly participated in international monitoring campaigns, this indicates the state's acceptance, in principal, of international monitoring. Its refusal of any form of monitoring represents a violation of a number of protocols and international agreements, including:
The African Charter for Popular Participation in Development and Transformation (Arusha 1990) which enshrines the necessity of "achieving self-reliant and self-sustaining people-centered development based on popular participation and democratic consensus."
The Copenhagen Convention [1990] provides in article 8 that "the presence of foreign and local monitors may enhance the electoral process of the countries in which the elections are being held."
The Announcement by the International Parliamentary Union on the guarantees of free and fair elections which states "state powers will ensure that the voting process will be carried out in an atmosphere free of election fraud and other unconstitutional and illegal means and to preserve the soundness, fairness and timeliness of elections and vote sorting."
For this reason, a number of civil society organisations brought legal action before the administrative judiciary. The court recognised the right of civil society and human rights organisations to carry out election monitoring. The PEC appealed this decision and a final verdict was pronounced overturning the original verdict on the grounds that the court did not have the jurisdiction to examine this case. The court "urged the constitutional legislator to seriously re-examine article 76 of the Constitution in order to bring the text in line with established principles concerning the jurisdiction of the administrative judiciary over any administrative decisions."
Two hours after the voting started, the head of the PEC issued a decision allowing human rights organisations to carry out election monitoring after having obtained the permission of the PEC. However, this decision was not communicated to members of the judiciary supervising the elections. On the practical level its implementation was virtually impossible. This is an example of the lack of certainty and clarity characterizing the PEC's competencies.
The performance of administrative bodies
Despite assurances by government officials of the neutrality of administrative bodies, and their pledge that all candidates would be dealt with fairly, a number of transgressions were noticeable during the election process. Administrative bodies used publicly owned means of transport to transport voters to polling stations where they voted for the NDP's candidate - a violation of the principle of fair competition between candidates.
Similarly, public funds were used during the election process - a violation of article 21(5) of Law on the Presidential Election (174/2005). There were noticeable shortcomings in administrative bodies' training of polling station supervisors. This training was intended to ensure a free and fair voting process.
These shortcomings extended to the polling stations themselves where the absence of voting cabins compromised voting secrecy.
The use of indelible ink raised a number of questions about whether it was used in sufficient quantities to ensure that it remained visible for the required 24 hours. EOHR noticed that some polling stations used ordinary ink mixed with indelible ink with the result that people were able to wipe if off before the required 24 hours. EOHR also noted the absence of indelible ink from several polling stations. This points to administrative bodies having performed negatively on several fronts, which, in turn may have impacted on the probity of the electoral process.
Electoral registers
Electoral registers are considered a major flaw in the electoral process in Egypt, not just in the presidential elections, but rather, in all previous ballots. There is a perceivable difference between the electoral register delivered to candidates and that sent to polling stations.
This, as a result, leads to many citizens being prevented from voting. These electoral registers continue to contain the names of deceased voters while simultaneously missing the names of individuals eligible to vote. In addition many similar sounding names have different numbers while different names have the same number. With regard to when the electoral register was given to candidates, the NDP candidate was given a copy of the electoral register a sufficient amount of time before the election. Other candidates however only received their copies on the first night of the electoral campaign which is a violation of the principle of equality of opportunity between candidates which prevented the other candidates from preparing for the electoral process.
Party political performance
There was clear disparity in the performance of political parties. NDP members were found in most, if not all, polling stations and electioneered for the NDP, encouraging voters to vote for the NDP candidate. This took place in a relatively high number of polling stations.
Polling station supervisors in addition affixed NDP propaganda on their chests-a flagrant violation of article 20 of Law on the Presidential Elections which prohibits electioneering two days before the day of the vote.
Other political parties were conspicuous by the absence of their representatives in polling stations. In addition, businessmen and certain members of the People's Assembly distributed sums of money to voters as well as voting cards marked for the NDP candidate which at the bottom stated that prizes, computer equipment and domestic appliances would be given to individuals who voted for the NDP candidate. This amounts to election bribery which is prohibited under article 51(2) of the same law.
EOHR also documented attacks by NDP representatives on representatives of the Ghad and Wafd political parties.
Individuals voting in polling stations other than those with which they are registered
According to article 35 of Law on the Presidential Election, voters located in towns or villages other than those in which their names are registered may cast their vote in any polling station in the district in which he is located on condition that the he presents his voting card and a piece of ID to the head of the polling station. The PEC has laid down several rules and procedures which must be followed in these circumstances. In violation of article 35 described above, polling stations set aside for these voters, violations witnessed were relatively high in number early on, mounting after 8 p.m. A number of voters were bussed in on public transport vehicles to vote without voting cards - a general indication of the foul play which occurred with votes, and a clear violation of the law.
Judicial supervision of the electoral process
The weakness and disparity of supervising judges was made clear to EOHR monitors. This is attributable to the clear lack of preparation, and the fact that some of them were distanced from election supervision. Officials from the international cases unit and junior district attorneys were relied on to perform judicial supervision of the elections. Exacerbating this is the requirement in Law 174 that all voting be carried out on one day, which prevents the judiciary from carrying out full supervision of all polling stations and ballot boxes. Some members of the judiciary were in addition unable to control polling stations since a single judge was required to supervise between 4 - 5 ballot boxes. Added to this are the broad powers granted by the law and PEC decisions to ballots box officials who are state employees.
Recommendations
1. Upon the announcement of the results of the presidential elections and President Hosny Mubarak's taking office, we call for the immediate announcement of the formation of a national committee comprising political party members, NGO representatives and constitutional jurists who will examine the amendment of the current Constitution, in force since 1971. This will establish a second republic based on the principle of the separation of power, limited presidential powers, and a wider accountability role for the legislative branch on the executive branch. Such amendments should include the revision of regulations imposed on presidential candidature, enshrined in article 76 of the constitution, which have so far only attributed to the restriction of non-partisan and independent presidential candidates who have failed to secure 250 approvals from members of the People's assembly, Shura Council and local councils as well as amendments allowing elections held on more than one day.
2. Completion of the National ID project which was supposed to be concluded by 2003, and allowing citizens to vote by showing National IDs which include details such as date of birth, place of accommodation and place of work which will allow for the exclusion of current election registers which have been the main source of discrepancy in elections due to irregularities within them.
3. Amending the Egyptian election system to a proportional representation system before upcoming parliamentary elections. This would allow for the establishment of partisan lists allowing political parties to occupy a number of seats that genuinely reflects their popularity. This should also allow independent candidates to form lists as well as satisfying suitable representation of women in the parliament.
4. Ensuring sufficient and complete judicial supervision over presidential and parliamentary elections by allowing only bench judges to carry out supervision of election polling stations and vote counting. This would only be attainable if elections are held on three phases nation-wide. EOHR also recommends that all judicial verdicts and appeals relating to elections be respected and implemented, including verdicts of the administrative judiciary. No commission should be allowed to turn down verdicts issued by the judiciary with regards to elections.
5. A separation must be made between state institutions and the ruling party in order to prevent the use of public funds, in the form of government institutions, premises and factories, during the presidential and parliamentary elections. This is so that employees working in public institutions such as unions and government bodies can instigate legal action against members who squander state funds on purposes other than for those for which the state institution was founded. Similarly, other candidates should be able to have recourse to the PEC which is legally empowered to examine any transgressions of the Law on Presidential Elections committed by candidates or any government body. In addition the state should not have a monopoly over the media. A clear legal provision should be drawn up obliging all forms of media - whether state or privately owned - to remain neutral and objective.
6. Sufficient guarantees must be provided to ensure free and fair elections. This includes the use of transparent ballot boxes made up a plastic glass-like material. These ballot boxes are used in elections in many European countries and some Arab countries such as Palestine, Lebanon, Morocco and Iraq. This will increase transparency and neutrality.
7. Local monitors must be allowed to carry out election monitoring of the forthcoming parliamentary elections through means of a presidential decree in application of article 147 of the Constitution which states "where urgent measures which cannot suffer delay need to be taken speedily when the People's Assembly is not in session the President may issue decrees on such issues with the force of law." There are similar systems in many countries. The Palestinian presidential electoral system for example provides that local and international monitors must be provided with accreditation and cooperated with. Bulgarian legislation provides that special conditions and procedures must be put in place for the participation of both local and international monitors including providing them with relevant documentation.
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