ISLAMABAD: The Commonwealth Observer Group (COG) has officially released its report on Pakistan’s 2024 general elections, pointing out several issues and ‘conditions which appeared to limit fundamental political rights and impacted one party’s ability to fairly contest the elections’.
The report covers various related aspects, including political environment and campaign, legal environment, security, participation and inclusion, election day administration, media and post-election petitions.
The Pakistan COG was chaired by Dr Goodluck Ebele Jonathan, former president of Nigeria, and 12 other eminent Commonwealth citizens. A staff team of nine from the Commonwealth Secretariat provided technical support to the Group. In accordance with its mandate, the Group undertook to assess the election day administrative process within the wider legal, political and democratic context in which it took place, and considered a broad array of factors affecting the credibility, transparency and inclusivity of the elections. It noted that of significant concern was the shutting-down of the cellular network across the country on the election day, which affected almost every electoral stakeholder in various ways, including the ECP, and limited fundamental political rights, including freedom of expression and assembly and access to information.
The ECP confirmed in the post-election period that the shutting-down of the cellular network – a decision that was outside its control – was responsible for the failure of the Election Management System (EMS). This resulted in a failure to digitally transmit results in accordance with the law, and led to reliance on manual transmission of results to Returning Officers (ROs). Shutdowns of cellular networks on the election day have been condemned in numerous international resolutions and statements, as well as in reports by UN Special Rapporteurs, as contrary to international law in all circumstances.
The Group acknowledges the concerns of security agencies regarding specific threats but is concerned that the impact on the transparency and integrity of the electoral process, and on the protection of fundamental political rights, was substantial and deleterious. Notwithstanding concerns regarding a lack of adequate testing, the Group has little doubt that the ECP has the requisite in-house expertise to develop and administer electoral technologies. However, the ECP must be supported by other stakeholders to allow these technologies to work as intended.
The ECP has appeared inadequately prepared for the impact of the failure of the EMS, despite widespread predictions of such a shutdown of cellular services on the election day. The manual transmission of results caused significant delays in their tabulation, and the failure of the EMS significantly reduced transparency in the process. Critically, the lack of digitally transmitted results forms expanded opportunities for the manipulation of Forms 45, 46 and 47.
On the legal environment, it noted, “…however, jurisprudential inconsistencies in two of the most significant and consequential cases in the pre-election period had severe impacts in terms of the level nature of the playing field. These were the Supreme Court’s reversal of the lifetime ban for politicians, and the ECP’s decision, later upheld by the Supreme Court, to withhold the bat symbol from PTI and to register PTI candidates as independents,” the report says.
Regarding the reversal of the lifetime ban, while the Group notes the convincing legal, democratic and indeed pro-candidate points raised in the court’s judgement, the Group is moved to consider the context in which the 2018 and 2024 judgements were made. It explained that the court’s 2018 judgement looked set to end the political career of former prime minister Nawaz Sharif at a time when he was widely regarded to be out of favour with the ‘establishment’ (i.e. the military and security services). Six years later, and with the political landscape having shifted significantly, the court’s volte-face revived the former premier’s career mere days before the nomination day. Irrespective of the legal and democratic merits of the court’s 2024 decision, such inconsistencies, especially considering their impact on the election, contributed to perceptions of an unlevel playing field.
Regarding the non-allocation of the bat symbol, the Group notes the legitimate concerns of the ECP and the Supreme Court regarding the validity of PTI’s intra-party elections. However, the Group avers that the consequences of this decision for one of the largest parties in the country – in terms of both the voters’ ability to exercise their franchise and the allocation of reserved seats – was highly disproportionate to the offence.
The report says the jurisprudential consistency, and the ability of courts to act free from outside interference, was thrown into sharp relief by the publication of a letter, six weeks after the election, by six judges of the IHC. The letter contained various grave allegations, including intimidation of judges, the abduction and torture of a judge’s family member and surveillance of judges’ homes by the security services. The Group is immensely concerned by these allegations, and by the possibility that such interference may have occurred in relation to election-related court cases. The Group urges the Supreme Court to undertake its announced suo motu investigation with the requisite vigour and transparency, commensurate with the seriousness of these claims.
A continuing track record of prime ministers failing to complete full electoral cycles provided an inauspicious backdrop to these elections. While the impacts of Covid-19 and the war in Ukraine on the economy presented significant political challenges to the Pakistan Tehreek-e-Insaf (PTI) government, the Group is aware of reports that disagreements relating to key appointments contributed to a chain of events that resulted in the vote of no confidence in Prime Minister Imran Khan.
The prevailing political and security environment, the group says, had negative impacts on the ability of all political parties to campaign freely, and to an equal degree. The Group received multiple reports of PTI members and supporters being arrested, detained and undergoing unexplained periods of disappearance, and of PTI offices and its members’ homes being closed or raided. These occurrences affected the ability of parties and candidates to exercise their fundamental constitutional rights of freedom of association and assembly.
The Constitution and the Elections Act provide for the holding of credible, transparent and inclusive elections. While the Group makes a series of recommendations for strengthening some laws, its main concern is not the legal framework but rather the interpretation and application of the law and exogenous factors that have impacts on the work of the judiciary. The Group is deeply concerned about a number of legal challenges brought against Imran Khan that prevented his participation in the election. The Group notes various concerns raised by the Supreme Court and the Islamabad High Court (IHC) regarding both the evidentiary basis for some of the charges and apparent inconsistencies in the application of judicial process by special courts. The Group’s other concern is with the timing of these cases. The trio of convictions of the leader of the largest opposition party, each handed down within days of each other and within days of the election, naturally raises suspicions regarding a political substrate to these convictions.
Indeed, it was observed that the Supreme Court appeared to address such concerns when granting Mr Khan bail in the so-called cipher case, warning of the deleterious consequences for Pakistan’s democracy of incarcerating elected politicians under the ‘contrive[d] doctrine of necessity’. The Supreme Court’s use of a term that denotes military influence in political affairs reflects a concern shared by many stakeholders, and indeed the Group.
In reviewing various decisions taken by the Supreme Court and some high courts in relation to candidate nomination cases and other electoral matters, the Group notes a number of decisions that upheld democratic principles and the rule of law, and that pursued pro-enfranchisement and pro-candidate principles where possible so as to maximise the choice available to voters at the ballot box. This is a commendable approach, it notes.
“…Yet few countries confront security challenges of such breadth and severity as those that face Pakistan. While noting the unfortunate loss of lives in attacks and incidents prior to and after the elections, the Group wishes to commend the ECP, the temporary workforce and the security services for their role in ensuring the elections were administered as peacefully as possible. Voters, particularly those in Balochistan and Khyber Pakhtunkhwa, are to be commended for demonstrating their commitment to representative democracy despite the risks,” the group acknowledges.
The Group also notes the concerns of civil society organisations (CSOs), including the Free and Fair Election Network (FAFEN), regarding the number of constituencies whose size fell beyond the legally permitted variance, and the possible impact this had on the equality of the vote. While appreciating that the typical period between such exercises is 10 years, there may be a need for another delimitation exercise ahead of the next election, potentially involving an amendment to Article 51 of the Constitution.
The Group notes the commendable efforts of the ECP to ensure inclusive elections. The ECP’s expansion of its Gender and Social Inclusion Wing was a worthwhile endeavour, to which the closing of the voter registration gender gap to just 7.7 per cent may partly be attributable. The Group also notes that the 2024 elections saw youth turnout, by some estimates, reach parity with the national average for the first time. Other commendable achievements included the establishment of the ECP’s gender hotline for the reporting of harassment and intimidation. Nevertheless, the Group regards this to be a low bar that should be raised. It is evident that much more needs to be done to encourage women’s political representation.
The Group notes the lack of timely action of the ECP with regard to the failure by a number of political parties to nominate the minimum required number of female candidates. The Group notes two key concerns regarding the census, and their impact on the delimitation exercise: timing and transparency. Regarding the former, the series of delays in administering the census resulted in the postponing of the date of the elections beyond the temporal limit provided for in the Constitution, and in a compressed period for delimitation that placed enormous pressure on the ECP.
It notes that the full results of the census were not released prior to the election. Concerns were raised regarding the reduction of the total population by 9 million, 7 million of them in Balochistan, between the provisional announcement of the census and their eventual approval by the Council of Common Interests. The Group also notes that interruptions to national internet connectivity appeared, on more than one occasion, to coincide with one political party’s online campaign and fundraising events. This represents a restriction on fundamental political rights, including freedom of association, assembly and expression.
The report notes the need to amend the quota of women parliamentarians in order to achieve the Convention on the Elimination of All Forms of Violence Against Women (CEDAW) target of 30 per cent. Certain provisions of the Elections Act, and the maintenance of separate voter rolls, are inconsistent with Pakistan’s commitments in its own Constitution and in international law.
The Group is concerned regarding certain provisions in laws such as the Pakistan Electronic Media Regulatory Authority Ordinance and the Pakistan Electronic Communications Act, and their impact on freedom of expression. It is noted that some directives by media regulators appeared to target certain individuals. The Group is also concerned by levels of violence — including killings — against journalists in Pakistan and the lack of prosecution of perpetrators. Of particular concern is the relative lack of action taken by state institutions, including law enforcement, to seek justice for the victims.
Indeed, the Group surveyed a wide range of documentation that appeared to indicate that, in some cases, copies of Forms 45 held by party agents differed from those used in the tabulation of results that later appeared on the ECP website, with vote totals and turnout figures altered. Analysis by CSOs also appears to show some polling stations with unfeasibly high voter turnout figures, or very high differentials between the turnout for National Assembly and Provincial Assembly elections within the same constituencies. The Group is concerned that this could have resulted in a number of candidates being inappropriately returned as elected.