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DE RUEHKH #1198/01 2191343
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R 061343Z AUG 08 ZDK CTG RUEHSD 0061 2221550 GARBLED TEXT
FM AMEMBASSY KHARTOUM
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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