VI. Flaws in the 2008 Election Process

Possible Partiality in Candidate Registration

Members of political parties and civil society observers told Human Rights Watch the Constitutional Court has acted more transparently and efficiently in dealing with election matters than the Supreme Court, from which it assumed responsibility in June 2008 (see Chapter III). For the September elections the Constitutional Court had to swiftly approve lists of candidates from political parties, including some with internal divisions meaning that dissident wings had filed separate lists. However, at least in the case of PADEPA, an opposition party believed to have considerable support from urban youth, the Constitutional Court took a controversial decision: The court ruled in favour of a dissident faction, despite a pending criminal investigation against the leader of this faction, Luis Silva Cardoso, for shooting with a machine gun at a car in which former party president Carlos Leitão was traveling on October 5, 2007.[49] This raises suspicions that the court's decision was not politically independent.[50]

Performance of National Electoral Commission as Oversight Body

The fact that eight of the eleven CNE members at central level are either formally or de facto MPLA appointees was not the only issue preventing it fulfilling its independent oversight role for the September 2008 elections. During voter registration, the CNE lacked resources and powers to effectively supervise the process, and the central voter database remained in the hands of the Inter-Ministerial Commission for the Electoral Process (CIPE) until shortly before the elections. As numerous members of opposition parties and civil society organizations as well as local election commission members told Human Rights Watch, the CNE for a long time lacked its own offices and shared senior staff with CIPE at local levels. Thus, the supervisory body depended on government bodies that it should supervise, and which were fully dominated by the MPLA.[51] "The role of the CNE and CIPE was never clearly defined. In practice, the CNE ran on the coat tails of the CIPE", a civil society organizer told Human Rights Watch.[52] The European Union Observer Mission concluded that the CNE's supervisory role of the voter registration was "at best limited."[53]

The weak role of the CNE as an oversight body became even more evident during the campaign period, when it failed to fulfil its role of taking any remedial action in response to violations of election laws by the ruling party.[54] For example, the CNE did not issue any public statement to reinforce equal access to the state media (as noted in Chapter IV), or act to stop the abuse of state resources by the ruling party. The CNE's credibility was further undermined by indications of interference by the president's office prior to the elections, through the gradual insertion of presidential appointees into the CNE administrative apparatus.[55] The involvement of the president's Military Office and the private company Valleysoft, owned by a close relative of the president, in election logistics during the polls has raised further suspicions.[56] While there is no evidence that the involvement of presidential institutions was a deliberate attempt to manipulate the polls, the CNE failed to disclose the scope and nature of such arrangements.

The erosion of the CNE's credibility culminated in its inability to prevent numerous procedural irregularities and logistical failures from happening on polling day (see below). An official of the National Civil Society Electoral Platform (PNASCAE) summarized to Human Rights Watch his personal view, reflecting what many other observers, journalists, and civil society activists have also expressed: "The CNE lost administrative, logistical, legal, and political control of the election process. These failures undermined the CNE's credibility."[57]

The most problematic breaches of election laws and international standards, highlighted below, illustrate the urgent need for a genuinely independent oversight body for future elections.

Unequal Access to State Funding and Resources

Opposition party activists told Human Rights Watch that late arrival of funding had been a serious setback to their campaign efforts. The Electoral Law (as noted in Chapter III) provides for state funding for political parties who are eligible to run candidates, to be disbursed at least 90 days before election day. But for the 2008 elections the process of determining which parties qualified for funding was delayed because party candidates were only approved in mid-July 2008: Specific criteria to determine how political parties should document their supporter numbers had only been issued by the newly-created Constitutional Court on June 25. Consequently, the state subsidies for campaigning, fixed by the government at US$1,200,000 each, arrived only after the election campaign had started.

Political parties represented in parliament had access to regular state funding from the state budget, in proportion to the number of votes cast for each in previous elections.[58] This provided UNITA with US$12 million and the MPLA with US$19 million annually. However, the funds at the MPLA's disposal appeared to be well in excess of what was recorded as having been provided by the state budget or donations from private companies.[59] The MPLA started its campaign as early as April 2008, by increasing the number of high-profile provincial visits and public rallies with clear election-related content by senior government and MPLA officials, in preparation for a party congress in May. In a high-cost environment like Angola, organizing such events implies substantial funding. In addition, as documented in the following section, the distribution of substantial gifts was an integral part of the ruling party's campaigning.

The Electoral Law forbids, among others, public institutions and companies as well as provincial governments from funding political campaigns.[60] However, the profound blurring of state and ruling party structures at all levels of power, including government, the civil service, and public companies in Angola, has contributed to obfuscating the use of state resources and facilities for ruling party purposes. For example, opposition politicians in all provinces we visited told Human Rights Watch that ruling party professional cells, the so-called Speciality Committees (Comités de Especialidade) established since 2003 by the MPLA in all public administration departments, have played an active role in election campaigning. Interviewees said that these party cells have also continually exerted pressure on civil servants by making professional advancement dependent on joining the MPLA.

Unequal access to state funding and resources has been a major point of criticism by several national and international election observers and civil society groups. [61]

Preferential treatment of some voters from abroad

No voter registration had taken place outside of Angola (see Chapter III), but many Angolans living abroad came to register and vote on their own initiative in border regions or from other countries. European Union observers witnessed the MPLA transporting more than 1,500 people from the neighbouring Republic of Congo to vote in Cabinda on polling day.[62] An UNITA candidate told Human Rights Watch this practice took place at several points at the border,[63] and EU observers also reported similar cases at the border with the Democratic Republic of Congo in Zaire province. UNITA party officials in Cabinda told Human Rights Watch that logistical support by the MPLA and MPLA-run administrations for cross-border voting in Cabinda raised strong suspicions that primarily people willing to vote for the MPLA were selected for such operations.[64] The EU EOM concluded that the CNE's cooperation with such MPLA cross-border operations put the independence of the oversight body into question.[65]

Buying Political Favor

During the campaign, MPLA and government officials distributed extravagant gifts in an apparent effort to buy political favor. In most provinces, television coverage of MPLA rallies regularly showed costly items such as motorbikes, televisions, and refrigerators being lined up to be distributed to local dignitaries, as well as grain, seeds, and agricultural equipment to be given out to farmers. In some cases, the MPLA flag was shown flying from trucks that were distributing water-an expensive commodity in Angola-and sacks of grain.

The Electoral Code of Conduct forbids political parties from "resorting to corruption to seek activists for the party," yet fails to define the term "corruption."[66] Human Rights Watch received credible information that gifts were used by government and MPLA officials to co-opt support for the party.

For example, local journalists and activists in Cabinda told us that in the course of an MPLA election campaign there targeting churches, the MPLA-run provincial government distributed large sums of money-between US$100,000 and $200,000-as well as cars, motorcycles, corrugated sheet roofs, and other valuable items to at least 20 churches and church groups.[67] These donations were done during events in which the provincial governor, in his capacity as provincial first MPLA secretary, called on churchgoers to vote for the MPLA. The state media regularly reported on such events, quoting assurances from church representatives that they intended to cast their vote for the MPLA.[68] Local journalists also told Human Rights Watch that during the months before the elections the Cabinda provincial governor-acting as first provincial secretary of the MPLA-distributed a large number of cars to representatives of the state media (Jornal de Angola, Angop, TPA) and several associations and trade unions, including two teachers' unions, the union of oil industry workers, the association for medium and small private companies, the association of young musicians and composers, and three journalist unions.[69]

Observations from other provinces reported by various national and international observers and civil society groups indicate patterns of gift distribution by the government and the MPLA that Human Rights Watch documented in Cabinda were extensively used throughout the country, including to traditional authorities in rural areas.[70]

Unequal Access to Public Facilities and Space

During the election campaign the MPLA enjoyed privileged access to public spaces to organise their events. Government offices regularly closed when an MPLA event was scheduled, to allow people to attend, at times under coercion. Before the campaign school pupils were commonly strongly recommended to attend MPLA pre-campaign events (during the one-month campaign schools were closed entirely).[71] It is widely known that such practices, reminiscent of the previous one-party state, are longstanding in Angola. By contrast, the Law on the Right of Assembly and Demonstration only allows authorized public demonstrations to take place outside working hours, and has been used by the authorities to prevent legitimate public protest.[72]

For example, the MPLA had access to the city's main stadium for its campaign rally in Cabinda on August 28, and the government administration was closed. Local journalists and a lawyer in Cabinda told Human Rights Watch that no opposition party or civil society organisation had ever been allowed to use the main stadium or pavilion for their activities: "The Tafe stadium and sports pavilion only opens when the governor wants to organize something," a local lawyer remarked.[73]

Human Rights Watch also witnessed how in the cities of Huambo and Cabinda the transport division of the Angolan National Police closed off city streets for motorcycle races that formed part of MPLA campaign events.[74] Human Rights Watch received no report of similar cooperative attitudes from the side of the state administration toward opposition party events.

In addition, as a side-effect of the president's unprecedented series of provincial visits for campaigning purposes, airspace was frequently closed. This hampered efforts of other campaigners. According to Angolan practice, national airspace is closed off and scheduled flights cancelled without prior warning for several hours before and after the president travels.

Government Obstruction of Independent National Observers

Domestic election observation was permitted for the first time during the parliamentary elections, in accordance with the election observation law passed in 2005. This important initiative has the potential to contribute to the national and international credibility of election processes in Angola. National observers, who were far more numerous than international ones, are likely to be more alert to flaws on polling day than short-term international observers, most of whom did not speak Portuguese or any other Angolan languages. However, this opportunity was largely missed in the 2008 parliamentary elections, as many national observers were denied accreditation and others only accredited at the very last minute. Some of this was due to bureaucratic delays and the burdensome requirement that national observers provide evidence of having no criminal record. This requirement was eventually dropped in most provinces but retained in Luanda.

The government seemed particularly keen to limit the number of election day observers from civil society groups that it perceived as independent, especially in Luanda. Fewer than half of the national observers trained by the Civil Society Electoral Platform, a coalition of civil society organizations-1,300 out of 2,640-received accreditation.[75] Accreditation was most restricted in Luanda: only 28 Electoral Platform observers were accredited out of the proposed 370. Another civil society coalition hosted by the local human rights organization Mãos Livres, the Coordination Council for Human Rights (CCDH), had all of its 100 applications for observers in Luanda refused.

According to Angola's election observation law and regulations, the accreditation process for national observers should have been conducted by the provincial Electoral Commissions. However, in Luanda, where logistical challenges were considerable due to the high number of polling stations, the process was transferred at the last minute to the central CNE office, and then to a previously unknown structure, the Observation Office of Angola (Gabinete de Observação de Angola), run by a senior government official.

The decision to refuse the majority of observer accreditation applications in Luanda was announced on state television only 12 hours before polls opened. The decision, as explained in the announcement, was on the grounds of the Justice Ministry's having detected "forged" evidence of a clean record by 90 percent of applicants.[76] Yet, despite the seriousness of the accusations, no judicial action has been taken subsequently against the rejected observers, nor has they been given any official explanation for the rejection of their applications.[77] According to the EU EOM, the authorities in Luanda refused to accept criminal record checks obtained through a fast-track service-an unofficial method widely used to avoid lengthy procedures.[78]

The Electoral Platform denied the accusation of forged records, and made a public statement on election day expressing its "deep concern that the CNE deliberately limited the number of independent observers in Luanda, which is home to about one-third of all Angolan voters, obstructing impartial and independent verification, and undermining confidence in the process."[79] The lack of observation data for Luanda has undermined the value of the overall observer results, making them almost "meaningless," one international observer told Human Rights Watch.[80]

By contrast, several government-sponsored civil society associations received their accreditations without major problems. Of these, only the Angolan Bar Association voiced any criticism of the conduct of the elections, while most declared the elections "free, fair, transparent, and democratic."[81]

The preferential treatment apparently given to government-funded civil society organizations in allowing them to observe the elections is a strong indicator of an official attempt to weaken national observer groups that are more likely to be independent and speak out about their findings. The government had already previously expressed suspicion about the involvement of civil society organizations funded by foreign donors in civic education for voter registration. The CIPE head and Minister of Territorial Administration Virgílio Fontes Pereira articulated this in September 2006 when he said, during a meeting with civil society organizations engaged in civic education, that some NGOs were "tied to foreign interests."[82] At the same time the government has denied state funding for the large part of these civil society organizations, so they have depended on often unpredictable foreign donor money to conduct civic education and train and deploy observers. The government has long followed the practice, however, of selecting MPLA-friendly civil society organizations for legalisation as "associações de utilidade pública" ("associations of public interest"), which makes them eligible for regular government funding.[83]

One of the few Angolan human rights organizations which has regularly criticized the government's conduct of the election process, the AJPD, was officially informed on the eve of polling day about a lawsuit filed by the attorney general in 2003, threatening the AJPD with closure on the grounds that its statutes are not in conformity with the law. The AJPD has presented counter-arguments and has been awaiting trial since. Why it took the authorities five years to act is unclear.

Human Rights Watch has argued that the government's unease with independent human rights scrutiny over the elections period contributed to its precipitate decision to close down the office of the UN Office of the High Commissioner for Human Rights in Angola in May 2008, three months before the elections.[84]

Irregularities in Conduct of Voting, Counting, and Tabulation

Voting day was marred by widespread logistical and procedural flaws, most visibly in Luanda (where voting was extended to the following day), but also in other provinces. The EU EOM presented the most detailed analysis of observed flaws in its final report.[85] The main problems, beyond late or non-opening of many polling stations, flawed distribution of ballot papers, and late accreditation of polling station staff, party delegates, and national observers, included serious breaches of safeguards against fraud: The voters' roll was not available in most cases, and where it was available, it was not used to check voters' identity.[86] In addition, the government allowed no independent scrutiny of the results tabulation.

The European Union observers concluded that lack of technical experience was the main reason for these flaws, rather than a deliberate attempt to commit fraud. [87] Yet, as an international observer told Human Rights Watch, the considerable scope of the breaches hampered the transparency of the process: "It is difficult to judge the impact the verified irregularities had on the election results, because too many safeguards for best practice were breached."[88]

Flawed voter verification

SADC Guidelines require the existence of an updated and accessible voters' roll, and national safeguards to protect against people voting more than once.[89] The Electoral Law provided for the use of a voters' roll as an important safeguard. Absent a voters' roll in print or electronic version, indelible ink applied to voters' fingers was the only safeguard left during the polls, yet procedures to check each voter's fingers before voting were not applied consistently.[90]

According to the EU EOM, one of the main reasons for the lack of voters' rolls on polling day was their late submission by the CIPE to the CNE: only on August 17, three weeks before the elections. This was much too late to verify and correct possible errors and publish the rolls as prescribed by law.[91] The voter registration process carried out by the CIPE allowed political parties and observers only restricted access to the central voter register database (Ficheiro Central do Registo Eleitoral, FICRE), and no external audit was conducted.[92]"Nobody knows whether the voters' rolls available on polling day were correct," an international observer told Human Rights Watch.[93]

In addition, in a controversial last-minute decision on September 3, the CNE allowed that voters could cast their vote wherever they wanted within the municipality where they resided. According to the Electoral Law, votes from voters who lost their voter cards or voted elsewhere than originally registered should be cast in special ballot boxes, in order that they could be counted separately at provincial level.[94] According to the EU EOM, this CNE decision aimed to facilitate voting, but the decision came too late for polling station officials to be instructed on the changed procedures.[95] Local and international observers told Human Rights Watch that the counting procedures to deal with these special ballot boxes in practice was largely left to the discretion of polling station officials and thus varied greatly.[96]

"As a consequence of the fact that in most cases voters' rolls were not available or not used, and of the lack of uniform criteria for counting the special ballot boxes, it will be impossible to establish beyond doubt how many people actually did not vote," an international observer told Human Rights Watch.[97]

Lack of independent scrutiny of the tabulation process

The SADC Principles and Guidelines Governing Democratic Elections establish that member states should allow unrestricted access of political parties and observers to the counting centres, as an integral part of the state's responsibility to ensure the transparency and integrity of the election process.[98]

However, national observers only had access to some counting centers at provincial level, and international observers were not allowed unrestricted access to the National Tabulation Centre in Luanda to monitor the final tabulation process.[99] Taking into consideration the breaches of crucial safeguards against fraud during the polls, independent monitoring of the counting and tabulation process throughout the whole country would have been particularly important. In addition, results were not published at the polling stations, as required by the Regulations of the Electoral Law, making it difficult to compare local figures with the final tabulated results.[100] The EU EOM concluded that since they were not allowed to monitor the tabulation process and voters' rolls were not used, it could not confirm the high turnout reported by the CNE.[101]

Need for an independent post-elections inquiry

Despite the range and scope of the observed procedural irregularities and breaches of crucial safeguards against fraud, only a few formal complaints were filed by opposition parties. UNITA formally challenged the election results in Luanda, requesting a rerun. It filed a complaint with the CNE on September 7, claiming that the CNE's decision to allow voters to cast their vote wherever they wanted within their municipality of residence, to allow polling stations to remain open after dark, and to extend the polls to a second day in Luanda were illegal, and that the CNE failed to ensure timely delivery of material to polling stations and enforce safeguards against double voting. The CNE's rejection was appealed before the Constitutional Court on September 11, which on September 16 upheld the CNE's position. The court ruled that UNITA's complaint was unfounded, among other reasons because complaints were not filed by party delegates at the polling stations, as required by law.[102]

According to the EU EOM report, the opposition parties primarily failed to file complaints effectively due to lack of experience and technical knowledge of the legal procedures, but also due to a lack of definition in the Electoral Law about how to file complaints regarding breaches committed by the election management bodies themselves.[103]

At this writing, no opposition party or observer group has publicly presented evidence that the verified irregularities were deliberate. However, UNITA presented a post-elections report detailing a number of serious allegations of irregularities that had not been referred to by international observers.[104] These included allegations of significant discrepancies between the numbers of polling stations that had been approved and those whose results figured in the final CNE voting figures, discrepancies between the numbers of distributed, received, and used ballot papers in several provinces, deliberate non-accreditation of more than half of opposition party delegates at the polling stations, and interference in the election management by the president's Military Office and state security Information Services.[105]

Human Rights Watch has already called for an independent and impartial inquiry of irregularities reported on voting day, but this has not been answered.[106]It remains vital to establish how far irregularities affected people's right to vote in the first elections in 16 years, and to avoid similar scenarios in future elections.[107] On September 19, 2008, the CNE announced a commission of enquiry to prepare a report within 30 days.[108] At this writing, nearly five months later, neither the full composition of this commission nor its report has been disclosed to the public. This raises serious doubts about the adequacy and independence of this purported inquiry.