IV. Electoral Institutions and the Legal Environment

Legal Framework

The legislative framework for elections was revised in 2005, when parliament passed a package of election-related legislation, including laws on nationality, political parties and their funding, voter registration, electoral observation, and the Electoral Law itself. Parliament also passed an Electoral Code of Conduct for all groups and individuals involved in the election process, including the media, police, and the National Electoral Commission (CNE). However, no monitoring mechanism was established for the Code.

The Electoral Law sets out the legal and institutional framework for elections. Elections are scheduled by presidential decree at least 90 days before the polls. The Southern African Development Community (SADC) Parliamentary Forum rated this provision as bad practice, since-especially in the Angolan context, where elections have not been regular and have been repeatedly delayed-such a short timeframe to set an election date may disadvantage the opposition.[4] The electoral system is a two-level proportional system: 130 candidates are elected from one national constituency, and 90 candidates from 18 provincial constituencies (five per constituency, without regard to area or population size), based on party and coalition lists (individuals cannot be nominated as independent candidates).[5]

Election Administration

The Electoral Law established the National Electoral Commission with responsibility for oversight and coordination of the election process. Its goal is to ensure a "free, fair and transparent" election process. [6] At central level, six of its eleven members are appointed by political parties, in proportion to their parliamentary representation (three from the MPLA, two from UNITA, and one from the PRS). The other five members are effectively government/MPLA appointees, as two are nominated by the president and one each by the Supreme Court, the National Council on Media, and the Ministry of Territorial Administration.[7] This composition gives the MPLA political control of the CNE. This is in contravention to the SADC's Principles and Guidelines and undermines the CNE's credibility.[8] Responsibility for voter registration is assigned to the public administration under CNE supervision.[9] However, in fact the voter registration from November 2006 to May 2008 and the defining of the polling stations' location remained under almost exclusive control of a government body, the Inter-Ministerial Commission for the Electoral Process (CIPE), which had been created in 2004 for the purpose.

The Constitutional Court, established in June 2008, has responsibility for approving the registration of political parties and for establishing rules for party candidate selection, and serves as an appeal court for disputes over election results. Prior to June 2008 the Supreme Court had assumed the role of a constitutional court.

The Supreme Court had varied strongly in how it addressed election-related complaints depending on whether the MPLA or UNITA had made the complaint. In 2005 both UNITA and the president lodged complaints against different provisions of the Electoral Law and the Voter Registration Law. The Supreme Court responded positively within 45 days to the president's request to permit revision of the law to allow for three consecutive or intermittent presidential mandates. The revised Electoral Law was then reapproved by parliament and came into force in August 2005, despite the fact that UNITA's complaint was still pending. UNITA's extensive complaints included crucial issues such as the partisan composition of the CNE, the role of the CIPE, and the demand for Angolans to be unconditionally entitled to be registered as voters. The court finally responded to UNITA's complaints three years later, in February 2008, when the election preparations were well advanced and voter registration almost concluded. The Supreme Court ruled in favour of UNITA's demand that Angolans abroad have to be registered as voters and against the government's decision in May 2007 to abstain from registration abroad (the government cited lack of administrative capacity),[10] but the court stated that it was too late to implement its decision at that stage.[11] Since by law Angolans living abroad are excluded from voting in presidential elections, they will only be able to vote for the next parliamentary elections, due at the earliest in 2012.[12]

The Electoral Law provides for a one-off state subsidy to be allocated in equal amounts to all political parties eligible to run candidates, at least 90 days before elections.[13] This funding is essential for political parties without a parliamentary seat and access to regular funding from the state budget. The law requires that all political parties, in order to run candidates, have to present documentary proof of 14,000 supporters-500 in each of the 18 provincial constituencies and 5,000 for the national constituency-at least 60 days before the polls.[14]

Media Environment

The Electoral Law, in line with international and regional standards, provides that each party be allocated equal and free time on state radio and television during the campaign period. According to the scheme, known as "direito de antena" ("right to broadcast"), parties were assigned daily slots of between five and ten minutes each ahead of the main news broadcast.[15] However, beyond this space specifically assigned for campaigning, the press legislation in force during the 2008 election process gave insufficient guarantees for a level playing field among political contestants.

A new press law was enacted and entered into force in 2006. This brought some improvements over the previous law. For example, it eliminated the state monopoly over television broadcasting, provided for creating public television to be governed by principles of public interest, and included provisions that allow journalists accused of defamation to cite in their defence the truthfulness of facts reported. Yet the law still contains provisions that are not in line with international standards concerning freedom of the press. Defamation remains a criminal offense and is framed in broad terms under the category of "abuse of press freedom."[16] Human Rights Watch has raised concerns that criminalization of defamation is a violation of freedom of expression, while such vague definitions are susceptible to be used against government opponents and may restrict the freedom of journalists to carry out their profession.[17]

The government failed to enact necessary regulations to the press law (this should have happened within a 90-day time limit, as established by the law), which makes it largely inoperable. Separate implementing legislation that would have clarified crucial aspects of the law has yet to be passed.[18]

State-owned television (Televisão Pública de Angola, TPA)-until recently the sole broadcaster-and radio (Rádio Nacional de Angola, RNA) continue to operate under exclusive governmental control. The government failed to pass the necessary legislation, as required by the press law, to create a public broadcasting service that would guarantee impartial and independent public media.[19] Human Rights Watch has argued that implementing legislation for the public media should include provisions for establishing a governing board protected against arbitrary interference from the government, as recommended by the Declaration of Principles on Freedom and Expression in Africa of the African Commission on Human and Peoples' Rights.[20]

In addition, the government failed to pass specific legislation to set transparent criteria and procedures for licensing television and radio broadcasters, as required by the press law. As a consequence, licensing procedures for private radio broadcasters continue to be opaque and bureaucratic. To date, only the state-owned RNA has a nationwide broadcasting license, while independent, privately-owned radio broadcasters must apply for different licenses for each frequency they intend to use.[21] The government has prevented the Roman Catholic Church-owned Rádio Ecclésia from retransmitting its signal outside of Luanda since the radio restored its technical capacity to do so in 2003; the government alleges the station lacks a legal basis for this, but church members and legal experts have argued the church has a licence since the time of colonial rule for national broadcasting that the government never revoked.[22]

The new press law provides for an "independent body aimed at safeguarding the objectivity and impartiality of information, as well as the freedom of expression and thought in the press"-a role that the law assigns to the National Council on Media (Conselho Nacional para Comunicação Social, CNCS).[23] The Declaration of Principles on Freedom of Expression in Africa recommends self-regulation as a solution preferable to the establishment of such a regulatory body.[24] Nevertheless, an operable and independent CNCS could have contributed to serve as a more effective watchdog over the media during the election process. However, the government gave no priority to approving, before the elections, a new law defining the composition, functions, and powers of the CNCS, as required by the press law. In July 2008 the MPLA majority in parliament turned down a UNITA-backed proposal meant to make the CNCS more independent and to grant it more powers than the CNCS originally established in 1992.[25] Consequently, the CNCS retains is original role, including the absence of powers to impose sanction, and has failed even to make public comments calling attention to violations of Angolan laws, such as the partiality of the state media during the election process.

In December 2008 the spokesperson of the Ministry of Social Communication announced that outstanding media legislation, including the laws on radio and television broadcasting and the CNCS as well as licensing regulations for radio and TV, would be passed and governing boards for public broadcasters created in 2009.[26] It remains vital that such legislation is enacted in line with international standards and in a timely manner to make such legislation operable before the prospective upcoming presidential election.