Following the Egyptian protests of January and February of this year, the nation remains in a constant state of flux.  The military, the Supreme Council of the Armed Forces (SCAF), governs the country and will administer elections in the fall.  The SCAF issued a temporary constitution on May 30, 2011, which will remain in effect until after the Parliamentary elections in September. The first elections to be held are the Parliamentary elections in September.  Following this, a new constitution will be drafted and, finally, a new president will be elected. These elections will certainly determine Egypt’s future.  Yet, nearly every detail surrounding the elections is in contention: when they will take place, what type of election they will be, who will oversee the elections and who may campaign. 

The SCAF has taken an additional step in an attempt to ensure legitimate elections by enacting amendments to the Law on the Exercise of Political Rights and through the March 2011 Constitutional Declaration.

The 2011 Constitutional Declaration clearly mandates the creation of a special agency to govern the upcoming elections.  The details of this agency, called the High Elections Commission (‘Commission’), were further outlined in the 29 May 2011 amendments to the Law on the Exercise of Political Rights.  Presumably because of the numerous incidents of fraud following the most recent presidential election, the Commission will have complete authority regarding elections.  It will watch over the entire process, from voter registration to the declaration of the victor.  The Commission will be composed of members of Egypt’s highest courts; lower judges will staff the polling places.  Given the court’s history of voiding elections during Mubarak’s terms in office, it is our hope that the Commission will have the necessary independence and political freedom required to properly review elections.  What is less clear is whether the Commission will be able to properly administer elections free from improper influence or fraud. Although the intent of the SCAF in passing these laws cannot be doubted, the new laws’ implementation is equally important as their content. Egypt has a long history of unjust electoral practice that must be overcome.

The IIJD believes that elections must be fair and transparent for democracy to flourish. Elections are evaluated using five objective, non-negotiable factors to determine the legitimacy of any election.  Explained more fully below, these factors converge to create a holistic view of the political process and establish the sincerity of the electoral process.  The IIJD will only support elections which satisfy all five components of a free and fair election.

An independent national electoral commission must carry out and monitor elections.

The amendments to the law on the exercise of political rights create a regulatory agency which is clearly intended to be fair and impartial.  The Commission would regulate each step of the electoral process, including voter registration, campaigning, manning polling station and vote counting.  The amendments go so far as to require that one judge be available for each ballot box.  As such, many of the elections may occur over several days so that all can be appropriately observed.  It remains unclear if the Commission will be staffed adequately so as to guarantee judicial supervision of all polling places.

A fair, just, and transparent electoral law must be recognized as such by all parties involved, including members of the government, political parties and voters.

The election law amended by the SCAF was in place in Egypt for 39 years prior to the January 2011 revolution.  The May 2011 amendments were not voted on by legislators or the Egyptian population but were drafted and enacted by the SCAF alone. Yet, they have been accepted as the law governing the upcoming elections.

Many political organizations and citizens have spoken publicly against the law for not taking adequate steps to ensure a truly fair and free election.  Most notably, liberal political groups contend that the early date of the election (September 2011) will unfairly advantage the well-established Muslim Brotherhood.  These groups believe the elections should be delayed so that new political parties may be formed and given the opportunity to obtain the necessary resources to be successful in the election. In sum, although the content of the law is contested, it is generally accepted by the population and political groups as legitimate and controlling statute.

The IIJD believes that the SCAF should consult with the Commission, political parties and other interested groups to select a reasonable date for the election.  By imposing the September election, the SCAF requires the yet-unformed Commission to successfully execute an entirely new electoral process in less than six months.  A fair election is nearly impossible under these circumstances.  

Free and open media coverage.

The amendments make the Commission responsible for portioning airtime on national media outfits for candidates.  This control over both public and private media should equalize the coverage of different political parties, allowing all parties the ability to campaign on a public stage.

Additionally, Article 13 of the Provisional Constitution guarantees a free and open media, though this freedom is limited during a state of emergency.  This guarantee was also present in the 1971 Constitution. Yet the constant state of emergency under former President Mubarak meant that there were consistent instances of censorship.  Since the January 2011 revolution, there appears to be more media freedom, both through traditional media sources and the internet. Open dissent regarding SCAF’s actions and further protests continue to occur. Yet whether this freedom will continue through elections cannot be certain.

A registered citizenry with unrestricted access to media and press who may vote without facing intimidation or persuasion.

One of the most important changes made by the SCAF’s amendment is that specially obtained voter identification cards are no longer necessary.  Instead, voters will use the National Number identification card they already have.  Furthermore, polling locations and districts will be determined based on the residence listed on the National Number ID, simplifying the voting process. Previously, voters were often confused as to the location of their polling center, or were unable to obtain the correct identification card.  Many were disenfranchised because of such technicalities.  

Furthermore, the Commission will prepare the voter lists.  In the past, the Ministry of the Interior created voter rolls.  This change will increase the transparency of elections, while also making it harder for the current regime to influence the election’s outcome.  It remains unclear how voter lists will be circulated.  The IIJD recommends the lists be posted in public spaces at least two weeks prior to the election.  The Commission will also investigate any reports of intimidation or violations of the electoral process.  The amendments include bans on campaigning in houses of worship and educational institutions, as well as bans on bribery, violent threats, and religious campaigns.

All political candidates may freely campaign in all areas of the country.

The amendments do not directly address the issue of freedom to campaign.  In the past, the government imposed a blanket ban on political parties in order to suppress opposition to the Mubarak regime.  The current law seeks to open the political realm to all interested groups.  The amendments do create safeguards which ensure that all interested parties are able to avail themselves of national media outlets.  Candidates are also empowered to directly deal with the electoral commissions regarding the candidate’s place on the ballot.  No guarantees or assurances of safety of the candidates have been made.  Candidates who are legally allowed to campaign may still be met with violence and other intimidation tactics.  Presence of law enforcement officials or other security forces are needed to secure true freedom to campaign.

The amendments to the Law on the Exercise of Political Rights enacted by the SCAF take immense steps towards a free and fair election.  However, the true test will come upon implementation of these new laws during the September elections.  The IIJD recommends that:

• A new constitution be enacted prior to the parliamentary elections
• The constitution be drafted by an independent commission staffed by legislative and political experts
• The Higher Election Commission be formed immediately and given absolute control over elections
• The Higher Election Commission postpone the upcoming September 2011 Parliamentary elections until after a new constitution has been enacted
• The government train independent electoral monitoring groups to supervise the elections, and to create national reports concerning conduct and quality of the elections
• In the alternative, the government should clearly delineate the supervisory limits of judicial monitoring of the Parliamentary elections