Egyptian Parliamentary Elections: Last Straw?

December 25th, 2010 by Editor

On 28 of November 2010, the first round of the Egyptian parliamentary elections has taken place in an atmosphere of skepticism on the part of Egyptians and grave concern on the part of human rights and social and developmental organizations. This concern led to the creation of the Egyptian Coalition for Monitoring the Elections (ECME) which included 123 human rights and civil society organizations from 26 different governorates. The efforts of the Egyptian Organization for Human Rights (EOHR) within the ECME and on it own to observe and document the violations occurring throughout the whole electoral process have shown unfortunate and disappointing results. It is safe to say that violations have marred the electoral process from the beginning to the end tainting the credibility of the upcoming parliament and raising questions as to how much it really represents the will of the people.

Violations extended from the pre-elections phase to their conclusion. This has not come to surprise us in EOHR as the context has been set for such a sham to take place as early as in 2007 with a set of constitutional amendments which have been passed in 2007 through a national referendum of a compromised credibility to say the least. The constitutional amendments and the resulting legislations which accompanied them have been the first tool of manipulation which began to structure the context within which the 2010 elections violations have been enabled.

Legal and constitutional shortcomings:       

The legal framework within which this year’s elections took place has been set up long before the official electoral process has begun. A package of constitutional amendments has been passed in 2007 after a referendum whose credibility is at best questionable before which an overwhelmingly National Democratic Party (NDP) dominated parliament had passed this  package for referendum. In this package, Article 88 of the constitutions was amended to state that: “the law sets the conditions a candidate must meet to run for a parliamentary seat, and defines the rules of elections and referendum. Voting must take place in one day under the supervision of a higher committee characterized with independence and neutrality according to law. The law clarifies the duties of this committee and its structure and the guarantees of its members. This committee has to include current and past members from judicial bodies. This committee forms the general commissions which supervise the elections on the level of constituencies, and the commissions responsible for supervising the voting and the counting procedures. General commissions have to be formed from members of judicial bodies and they must supervise the counting process. All this must happen according to the law”. In law number 73 for the year 1956 on political participation, Article 24 gives the Minister of Interior jurisdiction to determine the electoral constituencies which has been used to divide up constituencies with overwhelming support for a certain opposition figure so that he could only run with half his popular base. Also, the same article gives the Minister of Interior jurisdiction to have the final say in the structure of the general and secondary commissions. The article states that presidents of general and secondary commissions have to come from judicial bodies, however, the secretaries of those commissions come from the public sector and government employees. It is important here to understand that the secondary commissions’ secretaries are the ones directly responsible for supervising the voting boxes and the voting process inside the polling stations. It is also important to understand that the Egyptian government is an NDP government which means that when it has control over who supervises the voting boxes, it means that the NDP -a competing party- has control over who supervises the voting boxes. To further the interference of the executive branch in the affairs of the elections, members of the judicial bodies who are chosen to be part of general and secondary commissions have to be approved by the Minister of Justice and then be appointed by the members of the Higher Electoral Committee (HEC) in coordination with the Minister of Interior. It would be later below explained that the choice of the HEC members themselves happen through an overwhelmingly NDP dominated parliament which means that the government is the one mostly supervising the elections which refutes any allegations of neutrality as the government in Egypt is exclusively formed from NDP members.        

Electoral procedures:                                                                                                                                                                                                                                                                                                            

These legal texts are translated into reality through an electoral system that is structured under the supervision of the (HEC) instead of the judiciary. The HEC is made of 11 members, 7 of which are chosen by the two houses of the parliament. The overwhelming majority of the NDP representatives in the parliament means that 7 out of the 11 members of the HEC are effectively chosen by NDP members, which constitutes a grave conflict of interest due to party affiliation in addition to the fact that many of them run for second and third terms. In that scenario, the members of one party get to choose those responsible for the elections of their co-party members in the following parliament, if not their own.  Also, the fact that there are only 11 members in the HEC raises questions about how effective it could be in supervising the ongoing elections throughout the whole country.

Threats to the separation of powers:

According to the law explained above, the executive is the one responsible for the formation of the general elections commissions which supervise the elections in the governorates. The constitution states that members of these commissions have to come from judicial bodies. However, it is noteworthy that another constitutional amendment made it up to the law to determine what a judicial body is, which practically means that even the general elections commissions members are not necessarily judges as not all judicial bodies according to the laws are made up of judges. The executive is also the one responsible for the formation of the commissions supervising the polling centers -the secondary commissions-. Such commissions are made up of public sector and government employees. This is of the utmost absurdity as it raises a question as to why would the government and the NDP dominated-parliament of 2007 want to take elections supervision away from the hands of the judiciary and put it in the hands of government employees, members of the executive branch?

A little context is needed to shed some light on the issue. As a response to all forms of intervention in the affairs of the judiciary, the Egyptian Judges Club (EJC) declared its opposition to the overlap between the powers of the executive authority and that of the judiciary. In 1992, the EJC adopted a proposed draft law to replace that of 1972 on the regulation of the judiciary which would increase their relative independence from the executive authority. The draft was rejected despite the consistent attempts to pass it through the legislature. Instead, the Ministry of Justice drafted an alternative law in 2004 which did not include the demands of the EJC. As a result, the EJC held an extraordinary general assembly meeting on 13 May, 2005 when they declared that they would boycott the then approaching parliamentary and presidential elections if their demands had not been met. This was before the latest constitutional amendments which evacuated the principle of judicial supervision over the elections from any real meaning. At the time, judges had to fully supervise the elections as a constitutional obligation supported by further rulings of the Supreme Constitutional Court. At the end of the much publicized confrontation, the EJC had not only lost the battle over the law proposed by the Ministry of Justice which did pass in 2006, they also lost the right to fully supervise the elections in the 2007 constitutional amendments. Article 88 was amended to state that the presidents of the general electoral committees have to be members of judicial bodies (whose definition is up to the legislature monopolized by the NDP) according to law. However, law number 73 for the year 1956 modified by the President’s decree of law number 176 for the year 2000 on the political participation makes the secondary committees members who are directly responsible for voting ballet boxes employees of the state directly answering to the executive thus making the judicial supervision only superficial and not capable of preventing any corruption in the voting process.

The facts reports issued by the EOHR on the 2010 parliamentary elections show many incidents were fraud was committed in the sight of secondary commission members and sometimes even under their protection or with their help. Bullies were roaming the streets around the polling stations and breaking into them, committing fraud inside, and pre-marking voting ballots for the NDP candidates -sometimes in their presence and with their help-. In a couple of incidents, judges who were members of the general commissions publicly declared the occurrence of elections fraud which was facilitated by the inadequacy of members of secondary commissions directly responsible for the polling stations.

In the first incident, Judge Waleed Al-Sahafei excused himself from resuming his duties as a member in the general electoral commission after he was locked into one of the polling station he was supervising where he first handedly witnessed election fraud facilitated by secondary commission polling stations supervisors in favor of NDP candidates. In the second incident, Judge Ibrahim Al-Wirdany asked to be excused from resuming his duties as a general commission member after witnessing extensive fraud committed in his jurisdiction and after reporting his lacking the tools to control such a phenomenon.

The two judges along with many others complained that the role of the HEC itself has become limited to issuing propaganda regulations and declaring results in the light of the extensive role of the Ministry of Interior whose jurisdiction extends to setting up the electoral rolls, declaring the final list of candidates, staffing general and secondary commissions in coordination with the Ministry of Justice and the HEC, and setting up the electoral constituencies. The whole concept of separation of powers is thus compromised which undermines the whole principle of democracy in Egypt. When the NDP controls the parliament and the executive -the government is ultimately and absolutely an NDP government- it seems that it becomes harder and harder for Egypt to move forward as a democratic country with one political party, and one political ideology dominating the whole political scene. When all this is combined with an open challenge of the judiciary, the picture looks really dark.

Such a challenge is not limited to taking elections supervision and management from the hands of the judiciary and placing it in the hands of the executive and members chosen by the NDP parliament representatives. The challenge is further extended to ignoring the rulings of the administrative courts concerning some candidates’ rights to be included in the final candidates’ lists, and concerning the cancellation of the elections in many constituencies in both rounds. Regarding this issue, the High Administrative Court declared that HEC’s negligence of the legally binding nature of the decisions of the administrative courts and the State Council compromises the legitimacy of the entire parliament and any of its upcoming decisions regarding some of the issues ruled on by the administrative courts before and during the elections. This means that the Egyptian judiciary insists on the enforcement of its decisions regarding the elections. When it is known that such decisions include the cancellation of elections in almost all the constituencies of Alexandria, all the constituencies of Kafr El-Sheikh, 10 constituencies in Dakahleya, and many others in Qaluibiya, Al-Behira and Assiut, it is clear that Egypt is facing a situation where the very creation of its parliament for the next five years is illegitimate and unconstitutional at best. This unconstitutionality comes originally from the very clear constitutional decree that law is the basis of governance, and that the authority and independence of the judiciary is not to be breached.

Further complications regarding the rule of the executive branch of the government show in several incidents when security forces were present while bullies committed violations ranging from violence to pre-marking voting ballots in public without taking any action. In some constituencies, members of the security forces took part in such violations; in one incident some of them opened fire on voters in the constituency of Al-Borlus and Al-Hamoul during the first round. Police officers were also involved in elections fraud, protecting bullies, assaulting voters, harassing civil society observers, and assaulting media representatives. During the first round, bullies roamed the streets in one constituency in police cars. Such an open challenge of all the rules of democracy and elections integrity leads to questioning the ability of the current constitution to ensure free and truly democratic elections. Questions also rise to doubt the current electoral system as applied this year. And finally civil society and human rights organizations raise the question of their role during the elections and how it could better be served.

 

 

Through evidence gathered from the observation efforts of EOHR, and through analyzing such results, we recommend the following:

1- Improving the legal framework of the elections:

A structural change needs to happen regarding elections laws and regulations to provide guarantees against fraud and favoritism in the light of the NDP domination of all the political tools and channels of the country. A constitution that would allow for such domination and thus such an extensive set of violations is most definitely flawed. In that regard, it must never be forgotten that the legitimacy of the latest constitutional amendments is in itself questionable due to the reported fraud committed during the referendum which approved such amendments.

As a result, EOHR strongly recommends the establishment of a preliminary think tank of five public figures who have the experience and the willingness to draft new amendments or a new articles all together that would ensure the protection of the most fundamental basis of democracy as a nucleus to a general assembly committee to draft the new amendments to correct the flaws of the current constitution which enables such atrocities to take place under the protection of the constitution itself thus depriving Egyptian from having a reference point of integrity.

2- Changing the electoral system:

The elections of both houses of the parliament this year have shown extensive flaws in the current electoral system. We thus recommend that it would be changed to a proportional representation system. Moreover, the electoral system as set right now have failed miserably in providing any sense of integrity to the elections as the domination of the Ministry of Interior over the electoral process is a major flaw in itself. We hereby then strongly recommend that elections supervision and management is meaningfully restored to the Egyptian unbiased judiciary.

3- Enhancing the role of civil society in elections observation:

Further legal and practical guarantees should be given to civil society organizations who wish to take part in observing the elections. Their observation authorization should be given without stalling or illegal obstacles. A safe environment has to be provided for them to meaningfully do their job without being threatened by bullies or security forces. Also, their reported violations have to be investigated and acted on by the specialized authorities.

4- Overall political reform:

Development and democratic change have always been long term inclusive collective packages. Changing legal texts, or enforcing regulations more forcefully would not mean anything as long as corruption is a political day-to-day given that is neither challenged nor even acknowledged. The picture is painted through different dimensions in media, economics, politics, and social structure. The NDP dominates the government, the parliament, the media, and the business world. In the light of such monopoly, it is impossible to create any meaningful change even if laws changed, even if the constitution was amended, and even if every single eligible citizen went to voting. Creating a healthy political environment has to involve a meaningful discussion between opposing parties. The political arena of Egypt is undiversified at best, which is a context that could never accommodate a diversified parliament. A parliament of over 95% of its structure from one party is not the problem; it is only a manifestation and a symptom of the problem which is a gravely exclusive, monopolized, and undiversified political life.

On a separate note, it has to be understood that ideology too is a long term word, and a word that doesn’t change outside of context. As such, it is unfair to call on people to become agents of change in a context that does not support any kind of change anyway. Part of the responsibility lies with the people, that much we all know is true. But how much of this responsibility would really make a difference? Does it make sense to ask citizens to go to polling stations where bullies open fire randomly under the protection of the police, where the police itself confiscates media representatives cameras and assault civil society observers, where those responsible for the integrity of the voting boxes are the ones who commit elections fraud, and where the judges who are supposed to be monitoring the work of those are held in custody, harassed and denied the right to perform their monitoring jobs? How is it that people are going to lead the change in the absence of an infrastructure that supports it? How do we ask people to go and vote when we know that it is a very real possibility that they would go only to find their votes already put in the voting boxes for them, or would have their dignity compromised by the violence surrounding the scene, or the disrespect characterizing the attitude of the security forces individuals?

These are all questions to stimulate our minds about how difficult it really is to achieve change. Change has to be sought structurally, textually, contextually and ideologically. Aiming for one of these aspects without the other would make any result meaningless. Excluding the importance of one of those aspects would mean that any change achieved is void and useless. Only through a collective effort towards change in all those fields would we have fair and democratic elections.

 

 

This entry was posted on Saturday, December 25th, 2010 at 7:13 pm and is filed under Statements. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.

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