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Cablegate: Analysis of Sudan's New Election Law Reveals Welter Of

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RR RUEHROV
DE RUEHKH #1198/01 2191343
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R 061343Z AUG 08 ZDK CTG RUEHSD 0061 2221550 GARBLED TEXT
FM AMEMBASSY KHARTOUM
TO RUEHC/SECSTATE WASHDC 1538
INFO RUCNIAD/IGAD COLLECTIVE

UNCLAS SECTION 01 OF 04 KHARTOUM 001198

DEPT FOR AF/SPG, A/S FRAZER, SE WILLIAMSON, DRL
NSC FOR BPITTMAN AND CHUDSON
ADDIS ABABA FOR USAU
STATE FOR AF/SPG, AF/PD, IIP/G/AF, RRU/AF

SENSITIVE

SIPDIS

E.O. 12958: N/A
TAGS: PGOV PREL KDEM KSCA OTRA EAID CDC SU

SUBJECT: ANALYSIS OF SUDAN'S NEW ELECTION LAW REVEALS WELTER OF
LOOSE ENDS, OBSTACLES TO SMALL PARTIES

REF: A) KHARTOUM 1014; B) KHARTOUM 1036

KHARTOUM 00001198 001.2 OF 004


1. (SBU) SUMMARY: An analysis of Sudan's new election law reveals
that the legislation contains many loose ends, some of which may be
able to be repaired by the country's Ministry of Justice. However,
the legislation's biggest shortcoming is probably the ambitious
timeline it sets for the country's National Elections Commission
(NEC) to put in place the country's electoral machinery, and then to
organize free and fair elections, due in 2009. For starters, the
NEC has not yet even been appointed; also, census data will not be
made available until at least the fourth quarter of 2008 for the NEC
to begin the very time-consuming process of drawing electoral
districts. The election law also presents some very real obstacles
to participation by the country's many smaller political parties.
Finally, the law's ban on party campaign financing from abroad
hampers the foreign assistance that Sudan desperately needs to be
able to hold free and fair elections on time. END SUMMARY.

2. (SBU) Sudan's National Assembly passed the country's
long-awaited Election Law on July 14. Following is an analysis of
the law. See Ref A for discussion of the law's basic provisions.

ELECTIONS TIMELINE MAY BE OVER-AMBITIOUS
----------------------------------------

3. (SBU) Particularly considering the fact that the country's
election body has yet to be appointed, the challenge of organizing
the national elections on time in 2009 seems overwhelming. (Note:
While the CPA calls for elections by July 2009, the two partners to
the agreement now accept any date in 2009 as being within the terms
of the accord. End note.) In this regard, Ray Kennedy, Chief
Electoral Affairs Officer at UNMIS, told PolOff that the new
election law has a flaw common to many new national election laws:
"You have legislators who don't understand the problems of planning
elections, saddling election officials with unrealistic timelines."
Also, he added, a lot of the timelines appear to have been drafted
by someone with a Northern mindset, not taking into account the
challenges presented in the South by the severe annual rainy season
in July-September and the more primitive infrastructure.

4. (SBU) The law is not clear in stating the timeline for the NEC
to delimit constituency boundaries once census data become
available. According to Kennedy, who has extensive expertise in the
field, "This process will take longer than most people think." It
took three months in Liberia, he said, which is a significantly
smaller country. In Sudan, the process could easily take from six
months to one year. And the drawing of electoral district
boundaries begs the question as to when census data will finally
become available. Kennedy and other UNMIS officials have told us
that, according to the latest indications from those involved in
tabulating the census results, the data may not be available until
January 2009 or later.

5. (SBU) Kennedy commented that his office's advisory efforts did
not seem to have resulted in much impact on the final bill. He had
prepared a detailed analysis of the first draft of the law, produced
by Sudan's National Constitutional Review Commission (NCRC), and had
disseminated it widely, including to leaders of most of the
country's political parties. This may have been a capacity issue,
or it could well have been hostility to outside influences. For
example, when he called at the NCRC, he recalls he was told that the
Commission was pleased to receive him "as a visiting scholar," but
not in his official (UN) capacity. Looking at the final draft,
Kennedy could find only one minor instance where UNMIS suggestions
may have been taken into account.

APPOINTMENT OF CHAIRMAN REFLECTED LIMITED INDEPENDENCE
-----------------------------------------

6. (SBU) One change from the draft to final law that did not
reflect UNMIS advice, Kennedy said, was a change in the method of
appointing the Commission's Chairman and Deputy Chairman. Whereas
the first draft allowed the Commission members, as appointed by the
President and approved by the National Assembly, to fill the two
positions from among themselves, the final law provides for the
President to designate the two positions. Kennedy later cited this
change before members of the Electoral Donors Group (EDG) as
evidence that the President may not want the Commission to be "too
independent."

BAN ON FOREIGN FINANCING OF CAMPAIGN/ELECTION ASSISTANCE PRESENTS
CHALLENGE TO DONOR COMMUNITY
--------------------------------------------- ---


KHARTOUM 00001198 002 OF 004


7. (SBU) Sudan's new election law is categorical in prohibiting
political parties from receiving financial assistance for campaign
activities from foreign governments, foreign NGOs, or any other
foreign group. Section 67 states: &Candidats and rolitmcal
parthes!sh!ll n/t!fanance!Thar@euetann$qoPaiwly`4myries0j2n QQan gQh`ffIiQmt$]up}@wtQpotp4/{cvwho (ntQfQvw8afQ[qvqRPdQkr/QxQQMgQ.-}wzy/#d&dwc3P }+c@Qz!-Ir]Od interpreted as preventing parties from
even receiving training from foreign donors.

8. (SBU) This language seems to make it difficult for foreign
governments and NGOs to assist political parties in preparing for
elections. Kennedy said the language appears to prohibit many kinds
of assistance that the UN has traditionally provided in emerging
democracies. At the August 3 meeting of the international Election
Donors Group (EDG), he cautioned all the representatives of the
embassies present to take this language very seriously, and to make
a thorough evaluation of what types of assistance they could
provide. For example, Kennedy said he has asked the UNMIS legal
advisor to provide an opinion as to whether UNMIS could respond to a
request for assistance from the Government of Southern Sudan, or
whether it could only respond to such requests from the national
government and the NEC.

COMPLETE LISTS PLUS CASH DEPOSITS EQUALS BIG BUCKS
--------------------------------------------- -----

9. (SBU) The election law requires each party participating in a
given election (for example, for the National Assembly) to present a
complete list of candidates for geographic constituencies as well as
for the women's lists for that election. Each list must present a
candidate for every seat up for election. This presents a perhaps
insurmountable challenge for some of Sudan's smaller parties,
particularly when coupled with two other requirements: First, the
law contains a literacy requirement for all candidates, for all the
legislative assemblies - and this in a country with widespread
illiteracy, which is particularly high among women. The literacy
requirement alone amounts to a substantial hurdle to the smaller
parties - again, parties are required to field literate candidates
for all available legislative seats, not just for those that they
have a reasonable chance of winning. Second, the law demands that
each party put down a substantial cash deposit for each candidate.
Kennedy did the math, and points out that the deposit bill for each
political party fielding candidates for the National Assembly alone
(not including Sudan's many state assemblies) comes to $22,500
(USD).

10. (SBU) The law stipulates that deposits will be returned to the
parties only for seats for which they are victorious. The upshot
here is that the smaller parties are required to post complete party
lists, with a candidate for each seat in a legislative body, and
then must pay a deposit for each candidate, when in fact these
parties have little possibility of winning but a handful of seats.
The result: smaller parties stand to forfeit substantial amounts of
money in each election. If this provision is allowed to stand, the
"perfect storm" of complete lists, literacy requirements, and cash
deposits threatens to become an insurmountable barrier, intimidating
many of the smaller parties from participating. In addition, the
cash requirements will put a premium on parties "selling themselves"
to well-heeled domestic donors (there does not appear to be a limit
on domestic campaign contributions), with all the potential for
corruption that entails.
11. (SBU) Kennedy told the EDG on August 3 that disadvantaging
smaller parties is not necessarily a bad thing - such measures can
discourage the rampant proliferation of political parties,
encouraging the consolidation of the atomized political landscape
(this is of course the reason for the four-percent threshold
requirement). However, for a transitional assembly, and for a
transitional election, the international tendency is to provide for
a more wide-open, inclusive election, he said.

LITERACY REQUIREMENT IS UNDEMOCRATIC
------------------------------------

12. (SBU) Further, the literacy requirement is inherently
undemocratic in a country with widespread illiteracy, where literacy
is a function of economic privilege. Kennedy notes that many
countries do not have such requirements for candidates to
legislative assemblies. For example, Brazil's lack of a literacy
requirement permitted participation by a number of indigenous
leaders.

KHARTOUM 00001198 003 OF 004

VARIOUS ERRORS TO BE CORRECTED BY JUSTICE MINISTRY
--------------------------------------------- -----

13. (SBU) Kennedy commented that the law was full of evidence of
sloppy drafting. For example, there were several instances of
incorrect cross references. Also, as another example, the law's
provision that 25 percent of the membership of the 450-member
National Assembly are to be women presents a problem: 25 percent of
450 is not a whole number. The law contains no mechanism to resolve
this issue; there's no problem if everyone agrees that the law means
to say "at least 25 percent," but this provision of the law, and
other inaccuracies, could give rise to lengthy legal challenges.
Similarly, the law provides for no method of determining "fractional
seats" that result from the apportionment process. Kennedy
commented that this issue is always extremely contentious in the
U.S., "so why should we expect it to be any less contentious in
Sudan?" Kennedy reported to the EDG August 3 that he has been told
that the Sudanese national Ministry of Justice will be able to
correct many of these technical issues without further action by the
National Assembly. However, these fixes could prove contentious
themselves.

LAW CALLS FOR TIMELY TABULATION OF VOTES
----------------------------------------

14. (SBU) The law seems to require timely tabulation of votes,
avoiding some of the potential for a Zimbabwe-type result. Votes
are to be sorted and counted at the country's polling stations
immediately after the closing of the polls, and the process is to
continue uninterrupted until it is finished. At that point,
election officials are required immediately to display copies of the
sorting and counting report at a conspicuous place at the polling
centers. However, beyond this point the law leaves the matter of
deadlines for reporting and adding up votes to the NEC. The law
tasks the election body to draft the procedures and the manner for
the aggregation and declaration of results at all the levels -
polling centers, geographical constituencies, the states, Southern
Sudan. The Commission is charged with declaring the results of the
election following the end of the period during which candidates and
parties are allowed to file an appeal of the election results -
which appears to be a function of their being able to observe the
casting and counting of votes at the polling center level.

OBSERVERS AND MEDIA GUARANTEED ACCESS
-------------------------------------

15. (SBU) The law has language guaranteeing that international
observers, representatives of the news media, and agents of
political parties will have fairly comprehensive access to all
stages of voting, and to the sorting and counting of votes.
Obstruction of the right of access by those parties to the electoral
process is to be punished with a prison term of six months to two
years and/or with a fine to be determined by the competent court.
The NEC is charged with licensing international observers. The
extent to which a comprehensive, coordinated observation effort by
international observers will be permitted depends on the
independence of the NEC.

IS THE ELECTION LAW SUFFICIENT UNTO ITSELF?
-------------------------------------------

16. (SBU) The NCRC purposely tried to draft the election law so
that it would be fairly complete in itself, as reported by the
co-chairman of the NCRC (Ref B). The Commission was sensitive to
the very real possibility that the National Assembly would not be
able to pass other reform legislation before elections, as
stipulated in the CPA, in particular new laws on the media and on
security. For example, Chapter 10 of the law is devoted to
prohibition of "corrupt and illegal practices and (other) election
offences," including bribery, use of undue influence, falsification
of election registers, obstruction of election officials,
infringement of secrecy of the ballot, obstruction of voter
participation.

17. (SBU) However, it remains to be seen whether the law itself
will prove up to the task of ensuring free and fair elections. The
Italian Ambassador, who serves as coordinator of the AEC's Power
Sharing Working Group (with responsibilities for elections),
believes very strongly that free and fair elections will not be
possible unless and until the legislative reforms called for in the
CPA, and in particular the media and security laws, are passed.
Failing that, "the social context for free and fair elections cannot
exist," he said.

KHARTOUM 00001198 004 OF 004

MANDATORY COMMITMENT TO THE CPA
-------------------------------

18. (SBU) Notably, all candidates and parties "in any election" are
required to submit a certificate pledging a personal commitment to
"respect, abide by and enforce the Comprehensive Peace Agreement."
This requirement, in Chapter 11, seems to have the effect of
enshrining the CPA as the supreme law of the land; no similar
provision is in place for the provisional national constitution, for
example. Further, while the requirement may serve the interests of
peace in Sudan, it limits the extent of political debate in the
country.

COMMENT
-------

19. (SBU) Charitably speaking, Sudan's new election law makes a
good start at laying the groundwork for free and fair elections.
Nevertheless, the main responsibility for organizing the entire
election system, and holding free and fair elections, is given to
the National Electoral Commission, which is provided for by the law
itself. Tellingly, the President has not yet even announced his
candidates for the NEC, although that deadline is fast approaching
(August 14). We have been told by several sources in the NCP that an
announcement is "imminent" though. The National Assembly will then
have to approve candidates before the NEC can even begin its
activity. That activity amounts to a truly daunting task - the NEC
must first create its own bureaucracy, and then set to work creating
and then implementing the rules and regulations for the country's
entire electoral machinery in Africa's largest country. Much of
that activity must await the availability of the census data; in
particular, the Commission needs that data before it can begin the
huge and complex task of drawing the electoral districts. This is a
contentious process that has dragged on sometimes for years in
certain regions of our own country.

20. (SBU) As the chairman of the NCRC told us some weeks ago (Ref
B), Sudan is going to need a lot of assistance from its
international partners to get its electoral machinery up and
running. Right now, the country does not have this expertise. This
job is made problematic by the blanket ban on foreign assistance to
Sudan's political parties in funding their campaign activities,
which are broadly defined. The donor community will need to wait
for the NEC to create itself before it has a responsible
interlocutor on providing assistance.

21. (SBU) But the ban on foreign financing is not the most
troublesome aspect of the new election law. That honor goes first
to what is probably the unreasonable timeline for elections set out
in the law, and then, second, to the considerable obstacles to full
participation of smaller parties formed by the requirements for
complete candidate lists, cash deposits for candidates, and literacy
requirements, as discussed above. Smaller parties - such as the
lesser factions of the DUP and the Umma party, as well as southern
political parties which barely figure into the political landscape
but will want to participate in elections nonetheless - do not seem
to have focused yet on these looming hurdles, having been
preoccupied by the issues of the four-percent threshold, and the
balance of geographic constituencies vs. proportional
representation.

22. (SBU) The USG will have to give careful consideration to the
types of assistance it can provide to Sudan's political parties, as
well as to the country's National Elections Commission, not only
considering the ban on foreign support to political parties, but
also considering our sanctions regime. We will continue to work
closely with UNMIS and the other embassies which are engaged in this
process to see how they plan to support the elections, and will
consult with other embassies who may also be contemplating political
party support. This is going to be a long, complex process made
frantic by the pressing deadlines and constant deal-making between
the parties (and especially the CPA parties - the NCP and the SPLM)
at each stage of the process.

FERNANDEZ

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