On how power is produced: The case of the National Electoral Commission (NEC) in the Angolan electoral process of 2008

Inspired by Luhmann’s concept of autopoiesis, this article will critically assess Angola’s process of political transition towards democracy by focusing on 2008 legislative elections. It aims to demonstrate that the development of the Angolan electoral process revealed the strategies by which the political hegemony of the MPLA constructed the necessary pre-conditions in order to secure its viability, that is, its ‘conservative adaptation’. A significant part of power (re)production strategies employed the formal mechanisms made available by the resources of the democratic framework. These mechanisms were featured mainly in state institutions and symbolic and discursive practises. At the level of the legal state institutions, one finds an exorbitant and frequently opportunistic legislative production characterized by numerous contradictions. This juridical production allowed the crystallization and effectiveness of the power system decisions even, or better yet, especially when there was a strong disagreement. The case of the National Electoral Commission (NEC) is in this regard, particularly instructive. On the level of the discursive and symbolic practises, the references to the legal state, state institutionalization and institutional normalization were subjected to rival interpretations by different political actors. In moments where tensions were greater, this radicalisation led to a moralisation of the discourse, turning the political debate into a moral classification of its participants. Therefore these references operated as self-legitimization semantics which, in the face of divergence, can be characterized by a certain moralization of the political discourse.

took place in 2012.Nevertheless, the multiple restraints faced by the political transition have been so overwhelming that some authors came to question the validity of the expression 'democratization processes', choosing instead to analyse what they consider to be a 'power recomposition'.This critical reading of Angolan contemporary history has been strongly emphasized in specialized literature.In fact, authors such as Messiant (1993;2002), Mabeko-Tali (1997;2005), Chabal (2002) among many others, highlighted the adaptation of Angola's power regime in the context of multiparty politics and analyzed the ways through which democratic ideals and procedures can, in certain circumstances, operate as a new resource of legitimacy and power exercise.In this sense, it is useful to remind Bayart's remark, according to which "democracy, or even better, the discourse on democracy is nothing else than another source of rent (…), but more adequate to the spirit of time" (Bayart, 2000: 226;Villers, 2003: 47).
Inspired by Luhmann's concept of autopoiesis, or selfproduction (King and Thornhill, 2005;Luhmann 1982;1991;1993;1995), this article will focus on 2008 legislative elections.It aims to demonstrate that the development of the Angolan electoral process revealed the strategies by which the political hegemony of the MPLA constructed the necessary pre-conditions in order to secure its viability.In other words, through the organization of the electoral process, the power system in place secured its own self-production, that is, its 'conservative adaptation' (Luhmann, 1995).
In order to gain access to these strategies, one has to consider the electoral process as the period of time in which the general and legal framework of elections is constructed, in which elections are prepared and in which discussions and negotiations between actors are at the forefront of political life.This implies a necessary expansion of the usual understandings of a given electoral process, beyond the period of time dedicated to electoral campaigns.Quantin makes the same argument, considering that this effort of contextualization is a necessary condition in order to assess if the elections allow free choice (Thiriot, 2004: 16).In a similar vein, Compagnon criticizes analyses that tend to neglect the organization of an electoral process, its legal framework and also its procedures (Compagnon, 2004: 60).
The excessive control of the electoral process by the MPLA was pointed out by political actors, and national and international civil society actors, as was the case of the SADC -Southern African Development Community (Luanda digital, 2007).Identified with phenomena of 'governmentalisation' and/or 'partidarisation', this control was quite visible in several occasions, especially in what concerned the juridical framework of the electoral process1 .How such phenomena manifested themselves on the creation and institutionalization of the NEC will be analysed in this text.
A significant part of power (re)production strategies employed the formal mechanisms made available by the resources of the democratic framework.These mechanisms were featured mainly in state institutions and symbolic and discursive practises.
At the level of the legal state institutions, one finds an exorbitant and frequently opportunistic legislative production characterized by numerous contradictions.This juridical production allowed the crystallization and effectiveness of the power system decisions even, or better yet, especially when there was a strong disagreement.It must be added that the archaeology of this legislative production and its constant remakes, helps to understand how the (re)production of the political hegemony in place was able to assert itself and condition the transition to a relatively disciplined and/or domesticated multi-party system (Messiant, 2006).In fact, ambiguities and indefinitions were managed, in several occasions, as a political capital.Luhmann is quite explicit in explaining their importance for a power regime: "an important question (...) is what latitude in behaviour is left open to the power-holder himself with regard to his decision-making chain, how open his future still is, once he has started to communicate (...) for example, whether a normative form of legitimation or even a juridical formulation of power puts more pressure on the powerholder to be consistent.The openness of his future and the flexibility of his actions are dependent not least on whether the power holder is free to act opportunistically" (Luhmann, 1979: 125).
On the level of the discursive and symbolic practises, in several occasions during political debate, the references to the legal state, state institutionalization and institutional normalization were subjected to rival interpretations by different political actors.The differences between them were so evident that they seemingly produce two different world visions.It should also be mention that in moment where tensions were greater, this radicalisation led to a moralisation of the discourse, turning the political debate into a moral classification of its participants.Therefore these references operated as self-legitimization semantics which, in the face of divergence, can be characterized by a certain moralization of the political discourse.

NATIONAL ELECTORAL COMMISSION
In the development of the electoral process, the NEC was one of the most significant objects to map the strategies of self-production of the instated power.It was also one of the most fruitful objects to analyse how this political transition was managed (Thiriot, 2004).
The discussion about the statutes of the NEC was in fact one of the most controversial ones.It had two main dimensions: the first focused on the range of competences in terms of electoral registration; the second raised issues related to its composition.In both dimensions, one could observe an action pattern that consisted on the juridical consecration of the political decisions of the power system.This pattern imposed itself whenever the acceptance of those decisions faced strong resistance and was highly improbable.It also had important consequences for the management of the electoral process.For instance, having no consensual support, the divergences reproduced themselves, re-emerging almost constantly during the electoral process, despite the juridical consecration of the instated power decisions.

First round: the electoral registration -the role of NEC
After the presentation of the electoral calendar, the discussion concerning the legislative framework was initiated.It focused on the electoral registration issue and soon led to antagonist positions concerning the institution that should be in charge of the voters' registration.The MPLA argued that it was a government responsibility; the opposition wanted it to be managed by an independent organism.The main controversy resided in article 13 of the electoral registration law draft, presented by the MPLA.This conflict turned out to be symptomatic.One knows there are many possible institutional models.The attribution of the registration tasks to a public administrative organism, to the government or to an independent institution, is possible and valid (Santos, 1992).But, in Angolan case, article 13 determined that the registration was a governmental responsibility.And in a context in which fears and mistrust towards governmentalisation and partidarisation dominated the electoral process, this option faced strong resistance and was interpreted as weakening the credibility of the process itself.
One should mention at this point, that governmental structures' gate-keeper role concerning the organization of the electoral process was already being prepared.In fact, starting in 1999 -at a time when the MPLA considered elections, even in the context of civil conflictchanges were initiated within the framework and duties of the Ministry of Territorial Administration (MTA2 ), predicting the transition of the electoral registration to this organism.The law by decree no.7/99 of January 8 th , for instance, approved the internal regulation of the National Executive for Electoral Processes, which was in charge of organising, planning and executing the preliminary electoral processes (article no. 1).The coordination of this organism was later consecrated to MTA.In fact, the law by decree no.86-A/99 of June 18 th established in its article 1 that it was duty of the Vice-Minister of Territorial Administration to help the Head-Minister in the coordination of the following organisms: National Board of Electoral Processes Aid and Cabinet of Local Authorities) 3 .
Considering the resistance against its intentions, the MPLA submitted a new proposal of the controversial article 13, which gave NCE the responsibility of superintendence and inspection of the electoral registration.This last function was extended to the political parties.
Nevertheless, the real conflict wasn't solved.The responsibility for voters' registration would belong to the Government.Antagonism and friction subsisted.The opposition argued for the validity of what had been established by the Law no.5/92 4 and what the electoral law in discussion vaguely indicated In fact, it defined in its article 154 the NCE as an "independent and participated organism that coordinates the execution, conduction and achievement of all the tasks and operations concerning the election as well as the superintendence and supervision of electoral registration acts" 5 .The plausibility of these demands was, nevertheless, rejected with the argument that registration execution would need an institutional and logistic apparatus that only the Government could secure.It was also argued that "there is no contradiction between article 13 and the law (no.5/92)" and that the differences introduced, although possibly seen as a downgrading of NEC, was at worst a "relative demotion".From this perspective, what the opposition understood as an "emptying of competences", was in fact a "power-sharing" model 6 .
Trying to avoid the risk of paralysis, the power system proceeds to the juridical consecration of its own intention and, with the support of its parliamentary majority, approved the Electoral Registration Law 7 .Therefore, it 3 Another important juridical disposition was the law by decree no 19/99 of the Council of Ministers.It approved the Organic Status of the MTA by stating that the MTA is responsible for «the creation of organizational, technical and administrative conditions for the electoral process procedure» (al.I, article 1) and for «the course of action of electoral registration» (al.m, article 1).It also established the National Board for Elections as one of the central MTA services (article 18º), which was in charge of the «planning, organization and execution of electoral processes».In this brief juridical archaeology, one clearly sees the instated power intention of placing itself in the centre of the mechanisms for elections organization. 4The law by decree no 5/92 of April 16th, defined the main rules of 1992's electoral process.It established the creation of «an independent organism from public power and from political parties»: the National Electoral Council (Conselho Nacional Eleitoral), which was responsible for the «coordination, execution, conduction and realization of the electoral registration and of all activities concerning the electoral process» (Public Conference by Raúl Araújo presented at a public debate, organized by Friedrich Ebert Foundation and realized in Luanda, October 30 th 2002.The conference is entitled «Debate about the rules for the elections» («Debate sobre as regras para as eleições»), and is available on http://library.fes.de/pdffiles/bueros/angola/hosting/up12_02araujo.pdf. 5The new electoral law is the law by decree no 6/05.It was approved on August 10 th and replacedthe law by decree no 5/92. 6Interview of a social actor involved in the organization of the electoral process.The interview was in Luanda in 2007. 7Law by decree no 3/05 of July 1st.The article 13 took the following form: «1.The National Electoral Commission is responsible for the approval and supervision of the electoral registration programme presented by the governmental organism in charge».The regulation of this law was established was established that the registration execution was a responsibility attributed to the MTA.In the words of a political opposition actor, "the MPLA now has a set of conditions that gives a greater control over the elections than those observed in 1992.The registration is fundamental.That is what explains the intervention of the MTA and the control of the calendar" 8 .
At this point, one should bear in mind that in 1992, the governmental presence was far from being merely residual.Santos argues in this respect that "from the Peace Process of Bicesse to the institutionalization of National Council of Elections, it was the Government that took -with the legal support of the law that created the MTA-the responsibility for the administration of the electoral process in its own hands.After the constitution of the National Council of Elections, the Minister of Territorial Administration becomes a central member of this organism and this allows the Government to remain inside the medium that conducts the elections process" (s/d: 65).But if, in 1992, the framework of the Peace Process, the presence of international observers and even the institutionalisation of the General Board of Elections (Direcção Geral das Eleições) allowed, to a certain extent, a minimization of the concerns regarding an excessive control by the government, in 2008, this "protective effect" suffered a significant dissipation.
Furthermore, with the approval of the range of competences of the National Electoral Commission, the Regulation of the Electoral Registration Organic Structure was also approved in the Council of Ministers.According to it, the central organisms for electoral registration coordination were the Council of Ministers, the Inter-Ministerial Commission for the Electoral Process 9 and the Ministry of Territorial Administration.In this threeheaded structure, the MTA took upon itself "the conception, programming, organization, coordination and execution of the electoral process" (article 6).
Without any responsibility over the registration execution, the definition of the range of competencies of the National Electoral Commission followed a formal procedural path: it was approved by the parliamentary majority of the MPLA and it was object of a legal consecration.That formal procedural path was however clearly insufficient to produce an authentic consensus and acceptance.It was interpreted by political and civil society actors as a "procedural democracy" 10 , which is easily transformed into an instrument for the power system self-production.This sort of 'procedural demo- Gomes 157 cracy' allows it to capitalise the formal resources of the democratic framework in order to secure its own selfproduction.In this perspective, the role of institutions, as the National Assembly, was being reduced to a chamber of approval of the intents and decisions of the power system -a chamber in which «everything suffers with the impositions of a 'democratic' dictatorship.They use and overstate the parliamentary majority"11 .The conflict will constantly be re-appearing in other moments of the electoral process and this shows not only the resistance towards the 'governmentalisation' and/or 'partidarization' of the electoral process, but also how the instated power dealt with it.

Second round: the composition of the NEC
A second controversy concerned the composition of the NEC.For the MPLA, its composition should obey to what it understood as a 'principle of proportion'.Therefore, the composition of the organism should be as follows: three deputies of the MPLA, two deputies of UNITA, one deputy for the rest of political parties represented in the National Assembly, a member indicated by the Ministry of Territorial Administration, two members indicated by the Presidency, one member indicated by the Supreme Court and another indicated by the National Council for the Media.The opposition strongly disagreed, arguing that it represented a clear and excessive partidarization of the National Electoral Commission.Their perspective enhanced that even the members indicated by entities other than the MPLA or the Presidency, were an extension of the power system -or, in the expression of some actors, 'chains of transmission'12 , given the non-differentiation between the legal system and the political sphere.
The opposition presented a counter-proposal, according to which the National Electoral Commission would be composed by six members elected by the Parliament and indicated by each political party; one member elected by the Assembly of the Supreme Court; one member representative of the MAT; another of civil society organizations; and one representative of historical Churches.It ought to be emphasized that the inclusion of civil society forces in this proposal could anchor the National Electoral Commission in a broader and diverse social platform.
This conflict empirically translates the findings of Thiriot: the possible diversity of institutional models of a given National Electoral Commission maintains an important relationship with the ways by which a political transition to democracy is processed (Thiriot, 2004).The author specifically argues that when a democratic transition is driven forward by the bases, the institutional models adopted tend to be broader and based on the principles of participation and co-management.She illustrates this with the example of Mali, where, similarly to the Angolan opposition proposal, the executive organism in charge of the political transition included representatives from different political, economic and social spheres.As such, Thiriot's main idea is that when a political transition is driven forward by the power elites, its openness tends to be limited, and the status of the National Electoral Commission tends to be a controversial issue.
The disagreement concerning the composition of the National Electoral Commission overlaps the discussion about the Presidential mandates.In fact, the 17 th article of the new Electoral Law established that the Head of State could only exercise two consecutive or three nonconsecutive mandates.This disposition was immediately reproved by the Presidency that demanded the Supreme Court to produce a verdict about the constitutional character of article 17.The Supreme Court, defending the Constitution of 1992 (Tiny, 2007), agreed with the Presidency and established that the Head of State could in fact run for three consecutive or interpolate mandates.
The Supreme Court considered that, since the second run for presidential elections never took place, José Eduardo dos Santos has been ruling under a constitutional mandate.With this argument, the President can be in office for three additional mandates.
The issue of presidential mandates being solved; the conflict about the National Electoral Commission once again unravelled by the legal consecration of the political intent, through parliamentary majority approval of the Electoral Law 13 .In late April, the proposal of the MPLA was approved, without being anchored in a previous consensus.A leader of UNITA considered that "the MPLA wanted to impose a National Electoral Commission in which the loyalty of two thirds of its composition is guaranteed.This composition secures the control of the electoral process by one of the involved parties" and this "injures the basic democratic principle of impartiality, exemption and equality between the competing parties".
This represented a serious concern shared by the SADC, for whom: "the fact that 6 of the 11 members of the National Electoral Commission are indicated by political parties raises worries about the extent to which the institution is seen as impartial (…).It also raises worries about the extent to which actors, especially political parties, can trust a process of electoral registration free from the influence of the main competitor" 14 . 13In April 2005, the majority of the laws concerning the electoral process were approved by the National Assembly: the Nationality Law (no 1/05 of July 1st), Political Parties Law (no 2/05 of July 1st), Electoral Registration Law (no 3/05 of July 1st), Electoral Observation Law (no 4/05 of July 4 th ), Code of Electoral Conduct (Resolution no 10/05), and Political Parties Finance Law.But the Electoral Law no 6/05 was only approved on August 10 th .Also, the Council of Ministries Decree no 58/05 concerning the Electoral Law regulation was only approved on August 24 th . 14SADC Parliamentary Forum Voter Registration to the Republic of Angola.Op. cit.: 3.
And this is the central point of a third conflict, since the problem "resides in the fact that there are no mechanisms to control the registration execution"15 .

Third round: superintendence
It is by now quite clear that the legal consecration of a political decision is a structuring strategy when the power system faced strong resistance and opposition.It is a structuring strategy not only because it is recurrent, but especially because it allows the self-(re)production of power.The osmosis between legal and political systems allows therefore power reproductions "in simplified form without the re-ocurrence of the conditions for its production", and signals how in these circumstances "it is hardly possible to reach any judgment about the future of the rule of law as a solution for mediating between politics and society" (Luhmann, 1979: 168/169).Nevertheless, although this strategy invests in a political decision the strength of the law, it is not enough to eliminate conflict and dissension.In fact, this strategy only achieves the transference and transmutation of the conflict to other moments of the political process; it only (re)produces new themes of antagonism.
For instance, after the definition of the NEC, the constitutional quality of government acts concerning the organization of the elections was questioned by UNITA in April 2005.The party asked for the verdict of the Supreme Court on several issues, namely in what concerned the independence of the NEC.In its public address, one can read the following: "the National Electoral Commission, as it is defined by article 56 and 161 of the actual Electoral Law, is in violation of the constitutional principles (…).Considering the 'modus operandi' of Public Administration in what concerns financial independence from the executive (…)', the 'real independence' of the organism 'is compromised'" (LUSA, 2005).
The main focus of these worries would be centred on electoral registration superintendence by the NEC.In 2006, several political parties formed the so-called 'group of the seven' and publicly presented their dismay towards the electoral process and alerted to a particular serious situation: the fact that "political parties, represented in the National Assembly, voted in favour of the election of the magistrates of the Supreme Court and magistrates of other courts as members of the NEC organisms, and hoped for the suspension of their magistrate functions according to Article 131 of the Constitutional Law", which was not the case.They regarded "the NEC as the organism that organizes and commands the electoral process, and decides about the complaints and irregularities of the process.The Supreme Court, acting as the Constitutional Court, would be the Instance of Appeal of the decisions made by the NEC; we consider this incompatibility of functions we're confronted as a flagrant unconstitutionality" (http://www.angonoticias.com/Artigos/item/8804/partidos-da-oposicao-denunciamfuncionamento-anormal-dos-orgaos-de-soberania).The central problem here resides in the effectiveness of the power separation principle and it is explained by a civil society actor in the following manner: "all main state institutions are domesticated.One can not talk about independence.The judges are nominated (…), all great institutions show off the face of the MPLA (…).There is not a system of check and balance: the institutions are not independent and do not surveil each other".The accumulation of simultaneous mandates in the National Electoral Commission and in the Supreme Court was constantly questioned during the electoral process and one can read from a SADC report on the electoral registration evaluation that: "the Observation Mission received complaints concerning the nomination of a Supreme Court Judge as President of the National Electoral Commission.Some actors expressed their fears concerning a possible conflict of interests.This issue demands clarification from the governmental authorities to enhance trust on the National Electoral Commission".The SADC also recommended that "the Inter-Ministerial Commission for the Electoral Process and the National Electoral Commission should guarantee that none of its officials performed both functions of registration execution and superintendence" and that "the government should seriously consider the use of a single and independent organism of electoral management to avoid confusion and to enhance transparency and credibility, instead of the present model, in which the Ministry of Territorial Administration and the National Electoral Commission are both involved in the process" .

CONFLICT OF SEMANTICS
Given the fact that juridical consecration does not derive nor produce an operative consensus, powerful semantics are employed in political discourse that aim to force the acceptance of a political decision.These semantic apparatus use implicit and explicit references to a persuasive political symbolism concerning the 'rule by the law', 'state institutionalization' and 'institutional normalization', among others.
Therefore, for example, the MPLA reacted to the public position of the 'group of the seven' by stating that "according to the Law, the competent institutions should continue to develop its activity with efficiency, impartiality and celerity, so that the preparatory tasks of the electoral acts, specially the electoral registration of citizens, may be achieved in time and allow His Excellency the President of the Republic, under his legal and constitutional competences, to hear the National Electoral Commission and the Council of the Republic, in order to set a date for the elections and subsequent establishment of an Electoral Calendar" (Angonotícias, 2006).

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Such semantic apparatus was, therefore, activated in order to produce a perception about a supposed institutional normality, which several actors did not recognize.The institutionalization of the rule by law was truly disputed between the political hegemony of the MPLA and those opposed to it.Consequently, two irreducible world visions were produced: on the one hand, one encounters strong criticism about an excessive control of the electoral process and serious worries about the real possibilities of democratization of Angolan state and society; on the other, one is confronted by a power system that tries to enhance the acceptance of its decisions and intents by describing them as legal, legitimate and in accordance with the rule by the law and power separation principles 16 .
Nevertheless, the employment of such semantic strategies did not reveal itself as a sufficient condition to diminish the anxiety of spirits and to win their approval.And, in the face of this resistance, political discourse can approach a sort of moralization that transforms what should be a political debate into a moral classification of the participants.In the public announcement made by the MPLA, mentioned above, the osmosis between political and moral discourse is quite clear.Celebrating "the efforts of the President of the Republic, of the Government and of the MPLA" towards peace consolidation, the MPLA considered "unjust and ridiculous the attempt to accuse its leaders and activists of intimidating and of intolerant practises against other political formations, when one knows that these, and especially UNITA, insist irresponsibly in indicating their representatives for many locations, elements that in the past, with guns in their hands, committed atrocities against the populations".
In this manner, a moral controversy is heightened which clearly conditions political dialogue and relationship.The moralization phenomenon tended to emerge in those moments where tension was greater, that is, when conflicts could not be resolved.In this sense, the transfiguration of political discourse into a moral discourse can be interpreted as a pathological symptom -one that indicates the incapacity of the political system to process its own conflicts democratically (Luhmann, 1999).

Conclusion
Through the analysis of the institutionalization of the National Electoral Commission, mapping and identifying the strategies with which the political hegemony of the MPLA was able to secure the conditions it needed to guarantee its own production in the uncertain context of elections, became possible.
In what concerns the National Electoral Commission, these strategies included the definition of its juridical framework (its range of competences and its composition).The manner by which that juridical framework was constructed brought about the awareness of the limits of a "procedural democracy" and those limits originated significantly in the problematic existence of the institutions and in the non differentiation between the legal system and the political sphere.This led to a questioning of political decision even when it was object of juridical consecration.And it was this context that justified one of the most significant recommendations of the SADC: "the government should seriously consider the separation of powers between state, government and party to avoid conflict of interests in resolving electoral disputes" 17 .
On the other hand, this conflict solving juridical strategy had its limits: because it was not anchored in real consensus, the divergences tended to re-appear constantly throughout political process with new themes or debates that shared a same common ground: the criticism towards the excessive control of the electoral process by the instated power.This is part of the explanation of why the Angolan electoral process was so turbulent.
Lastly, when tension grew, one observed the employment of a semantic apparatus that uses the "rule by the law" and the "state institutionalization" references.This, by its turn, led to a moralization of the political discourse that strongly conditioned political dialogue, revived fears and obscured what could be a transitional moment towards a non domesticated democracy.
From these strategies of self-production and from their consequences in terms of the electoral process, emerged, using the words of a civil society actor, the image of a 'super-athlete' that ran against 'crippled and mutilated' opponents.In this sense, one may ask for the meaning of an electoral process to a democratization process.Perhaps it remains useful to think about democratization in luhmannian terms: "Democratization occurs as a development through which a constantly increasing number of areas of communication interconnet with politics and which a constantly increasing number of themes become relevant for the code of power in the political system.Democracy is thus the political reflection of a condition in which all social systems approach a level of maximum inclusivity, in which they can respond to extremely diffuse and complex environments, and in which all events in society have relevance for one or more social system" (King and Thornhill, 2005: 83).
by the decree no 62/05 of September 7 th , which clarifies the National Electoral Commission's function in what concerns the electoral process (article 55). 8Interview of a political actor of parliamentary opposition inLuanda, 2007.  The Interministerial Commission for the Electoral Process was responsible for the preparation of technical, material and administrative conditions for the elections.It was composed by representatives of the Ministries of Territorial Administration, of the Interior and of Telecommunications.It was created by the Council of Ministries resolution no 34/04 of December 21st. 10Interview of a social actor responsible for a national non governmental organisation.The interview was done in Lisbon, 2008.