FOR IMMEDIATE RELEASE
Feb. 23, 2012
Contact: Baya Kara in Kinshasa +243 81 240 7659 or Deborah Hakes in Atlanta +1 404 420 5124
Carter Center: Democratic Republic of the Congo Legislative
Election Results Compromised
The Carter Center finds that as with the Nov. 28, 2011, presidential election in the Democratic Republic of the Congo (DRC), the integrity of the national assembly results has been compromised. It is difficult, and given the circumstances and amount of time that has passed, perhaps impossible, for the Independent National Election Commission (CENI) or any other body to reconstruct fully the results in the hopes of producing a faithful record of the will of the people. CENI has announced it will conduct an evaluation of the electoral process, and the Center hopes that this self-assessment will produce a clear and detailed analysis of what worked in these elections and what did not, with special focus on the results process. More, however, needs to be done.
DRC faces a political dilemma. By definition, a contested election result lacks the confidence of many, and perhaps a majority of the people. Moreover, the institutions designed to safeguard that integrity, notably CENI and the Supreme Court, are not viewed by many Congolese as independent and trustworthy. In such strained and compromised circumstances, it is only through inclusive political dialogue, a thorough review of the electoral administration, and the use of legal means that the people of Congo will be able to claim their rights. To this end, The Carter Center recommends an evaluation and in-depth examination of the entire electoral process, with the participation of all political party actors, and including transparent reviews of polling station-level results and other key electoral information. Such an evaluation is crucial to determine the will of the Congolese people and enabling potential legal challenges to be pursued through the judicial system. In addition, such a review is essential to prepare for future elections, including provincial and local elections due to take place during 2012-13. If political dialogue and an inclusive assessment of the electoral process are successful, potential outcomes could be a decision to re-run some, or all of the elections, or some other form of political accommodation to establish a legitimate governing authority.
Summary of key concerns of The Carter Center international election observation mission include:
During its six-month presence, the Carter Center's international election observation mission deployed long- and short-term observers throughout the 11 provinces to observe the preparation and conduct of the presidential and legislative elections in the DRC on Nov. 28, 2011. The Center observed election preparations, including candidate nomination and the campaign period, along with voting and tabulation of results. This statement focuses on events since the Center's previous public statement of Dec. 10, 2011. Following the departure of the Center's long-term observers in mid-December, members of the core team followed electoral developments and returned to Kinshasa in January 2012 to be present for the conclusion of tabulation of legislative results.
DRC faced significant challenges in the overall organization of the elections and in meeting a constitutional deadline of Dec. 6, 2011. The late establishment of the CENI and a divisive and partisan political context created additional pressures on the successful organization of elections. Despite many missed deadlines in the electoral calendar, CENI met the overall constitutional deadline and ensured respect of periodic elections. With a few exceptions, the election process was peacefully conducted. However, voting and the tabulation process were marred by serious irregularities, undermining the credibility of the presidential and legislative results announced by the CENI.
The pressure to hold elections on Nov. 28 to respect the constitutional deadline may have contributed to the flawed polling station map and compressed period for the recruitment and training of poll workers. However, the lack of engagement with political parties and the refusal to allow parties access to the central server reflects insufficient political will on the part of the CENI to hold transparent and credible elections. The lack of transparency shown by the CENI merits reflection on the commission's political composition and its capacity to be independent and credible for the next round of elections.
The poor management and disorganization of the local results tabulation centers (CLCRs) during the tabulation of presidential results contributed to the loss of at least 3, 500 polling station results (affecting 1.2 million potential votes), including some 2,000 in Kinshasa. Highly implausible results were reported from four districts in Katanga province, which recorded between 99-100 percent of the vote for incumbent President Joseph Kabila, with rates of voter participation of almost 100 percent. A further 10 districts had 95 percent of the vote for Kabila, garnering some 1.8 million of his 8.8 million votes overall. These districts also reported a rate of null or blank ballots well below the national average; yet even those small totals were greater than the number of valid votes recorded for all 10 of the other presidential candidates combined. These facts, coupled with the fact that CENI signed off and accepted these results, followed by the Supreme Court, undermine the credibility of not only these particular results but erode the integrity of the overall administration of the tabulation.
The tabulation of legislative results was affected by the same management and disorganization problems as the presidential results since all arrived at tabulation centers at the same time and under the same condition. In the face of heightened public and political scrutiny, CENI suspended operations after a number of cases of fraud were reported by party agents and political parties, and dispatched newly-appointed CLCR supervisors when operations resumed. Despite this additional safeguard, the legislative results announced by the CENI lack credibility and have been challenged by many candidates and parties who have filed complaints against the CENI. Similar irregularities during presidential ballot tabulation were reported to have occurred during the legislative tabulation. The 3,500 missing polling station results affected both presidential and legislative elections and no measure was taken to identify those responsible for this loss. CENI suspended tabulation on Dec. 21 in an effort to address problems but began to release provisional partial results in several increments beginning Dec. 28. On Feb. 1, 2012, two weeks behind schedule, CENI announced the last tranche of available results.
Senior members of the CENI who supervised legislative tabulation were responsible for resolving disagreements in procedures within their CLCR and authorizing a recount of ballots when necessary. It is not clear to the Center if any recounts were conducted nor on what legal authority CENI would have implemented recounts. Some supervisors also called for cancellation of tabulated results for their CLCR. This was the case for seven CLCRs: Kiri in Bandundu, Demba in Kasai Occidental, Ikela in Equateur, Kole and Lomela in Kasai Oriental, Masisi in North Kivu, and Punia in Maniema. Congolese electoral law does not recognize a challenge of results by the CENI and only the Supreme Court can nullify results. CENI's proposed cancellation of results from these seven districts is evidence of serious problems (but not publicly disclosed) during voting operations and/or tabulation, of which the Center hopes the Supreme Court will be mindful when reviewing any legal challenges submitted by candidates in other districts.
Absence of Polling Station Results
In contrast to the publication of polling station results for the presidential election, CENI has not done so for the legislative results, further eroding transparency in the results process and eliminating an important means for candidates and voters to verify the credibility of tabulation. Even though CENI claims to have installed scanning equipment in all 169 CLCRs for election staff to scan and send each polling station tally to a results center at CENI, it is apparent that this means of verification was at best imperfectly executed. The Carter Center recommends the CENI publish legislative results by polling station in order to provide the public the opportunity to review official tallies from individual polling stations.
Derogation/List of Omitted Voters
Some 3.2 million of the overall 18 million votes, nearly 18 percent, were cast through derogation voting voters casting a ballot at a location other than where they are registered. This high number of such votes reflects the many problems with CENI's management of the voter register. While derogation voting has the potential to increase voter access to the polls, it is also open to abuse by multiple or non-registered voters, especially when, as observed by the Center, other controls such as inking of a voter's finger after voting are not used comprehensively.
At the polling station level, copies of results forms received by The Carter Center from legislative candidates exemplify this practice. For example, in the province of Bandundu's Popokabaka district, a polling station in the village of Imwela recorded 294 voters on the derogation list and zero on the list of registered voters. Another in the village of Kabama recorded 168 voters on the derogation list and 98 on the list of registered voters and in a third, the village of Mutsanga recorded 390 voters on the derogation list and 61 on the list of registered voters.
The legislative results announced by the CENI constitute a National Assembly of 98 political parties for 500 seats. This large number of parties reflects a fragmented political scene. Forty-five parties are represented in the assembly by a single member of parliament and more than 74 parties have fewer than five seats. The 10 parties with the largest representation are PPRD, UDPS, PPPD, MSR, MLC, PALU, UNC, ARC, AFDC, ECT, RRC, and MIP. Independents obtained a total of 16 seats.
This divided National Assembly composition clearly advantages President Joseph Kabila and his coalition of parties. His PPRD party alone was elected in 61 seats, and some 340 members of parliament of 500 total are members of his ruling coalition, while opposition parties are divided among their 110 representatives. Presidential candidate Etienne Tshisekedi's party, UDPS, has the second most seats with 41, reflecting a strong regional base, 25 were elected in the two Kasai provinces, while third place presidential candidate Vital Kamerhe's UNC came third with 17 seats, 10 from the two Kivu provinces.
A closer reading of the legislative election results reported by district raises questions about the credibility of the results process. First, compared to the near total domination of presidential results for incumbent Joseph Kabila in Katanga province, those same districts reveal a striking diversity in the choice of voters for legislative candidates. In all cases, the parties of presidential candidates who implausibly scored zero are reported to have hundreds and in some cases thousands of votes for their legislative candidates in these otherwise Kabila strongholds. In this sense, even if the legislative results reflect a more faithful effort to record voter preferences, they still raise questions about the integrity of the tabulation of presidential results.
Other abnormalities are revealed in a district comparison of presidential and legislative results, as, for example, in the comparison of the number of voters for each election and the number of annulled ballots. For instance, in the Walikale district in North Kivu, 28,810 more voters for the presidential election were recorded than for the legislative election while an additional 4,926 were recorded in Malemba Nkula in Katanga. The discrepancy in the rate of invalid ballots is also noteworthy as in the case of Tshangu district of Kinshasa where the rate reached 10 percent in the legislative poll, while the presidential ballot yielded just 3.6 percent. This difference is possibly reflective of the enormous complexity of a legislative ballot with 1,575 candidates for 15 seats. However, Kinshasa, notable as an area of Tshisekedi support stands in contrast to Kabila's vote bank in Katanga that recorded the lowest rates of invalid ballots in both presidential (2.7 percent) and legislative elections (5.6 percent). Other patterns are evident in the district results but more thorough analysis is impossible unless CENI releases polling station results.
After the announcement of presidential results on Dec. 9, 2011, UDPS leader Etienne Tshisekedi refused to accept the results and proclaimed himself president on Dec. 23 at his residence. Since his proclamation, Tshisekedi has been under de facto house arrest with his home surrounded by police even though there has been no decision from the Ministry of Interior authorizing a house arrest.
Mr. Thsisekedi has also refused to recognize the legislative results. Though he is the leader of the party, Tshisekedi's position, through his unilateral proclamation that calls for an annulment of the legislative results and a boycott by his party's 41 elected members of the National Assembly, may come into conflict with the overall UDPS party agenda. If the boycott is upheld, his political ideas will not be heard in the national assembly without UDPS party representation, thereby silencing the largest opposition party. At the inaugural Feb. 16 National Assembly session, the sole UDPS member present, Timothy Nkisi Kombo, was designated as provisional national assembly president. However, UDPS expelled Nkisi after the session for violating the party's boycott.
The Supreme Court
Under Article 75, the court system holds real power to rectify legislative results in cases of clerical error.
The deadline for appeals for presidential election results is two days after the announcing of provisional results (Article 73 of the electoral law) and the deadline of processing is seven days after submission of a complaint (Article 74 of the electoral law). The Supreme Court received only one challenge for the presidential election, from Vital Kamerhe, and set Dec. 15 to rule on his complaint. The final decision by the Supreme Court rejected all of the complainant's arguments and confirmed the victory of Joseph Kabila. The Carter Center regrets the Court's decision has still not been published.
Challenges of legislative election results are governed by the same rules of procedure and the same obligations as those of presidential challenges. It is defined by articles 73 and 76 of the electoral law. The only difference is that the deadline for processing complaints is eight days after the announcement of provisional presidential results and two months after the legislative results.
The Supreme Court has received 507 important challenges from legislative candidates. The court published on Feb 15, one day before the first seating of the national assembly, a list of legal challenges involving 72 deputies.
The Supreme Court must conduct an exhaustive review of the complaints submitted and demonstrate its determination to take all necessary measures to arrive at correct results that accurately reflect the will of the people, including nullification and re-run of elections if necessary.
Congolese civil society organizations deployed non-partisan observers in large numbers on election day.
The Episcopal Commission for Peace and Justice (CEJP)/National Episcopal Conference of the DRC (CENCO) was the most visible on the ground with 30,000 observers. On Jan. 11, CENCO published a declaration outlining many faults in the electoral process and describing a chaotic environment. CENCO has declared that the electoral process was marred by serious irregularities that undermine the credibility of the published results and has called on the CENI leadership to resign if it does not address the problems they identified. CENCO also appealed to its supporters and the general public not to use violence to express their discontent with the election results. A proposed public demonstration by the church on Feb. 16 was obstructed by police with several arrests. In a separate statement, the Center has denounced these moves as unnecessary restriction of fundamental freedoms of assembly and expression.
Other prominent domestic observer networks who have published their assessments include RENOSEC and CAFCO.
The Carter Center supports Congolese civil society in its civic activism and encourages it to continue, despite challenges, in its efforts to find truth and build democratic institutions by using civic and democratic methods. The Center supports civil society initiatives aimed to achieve democracy thorough peaceful and legal means.
The Carter Center commends the Congolese people for mobilizing to vote on election day despite the many difficulties in locating polling stations. The Center reiterates its conviction in the capacity of the people to consolidate democracy through strong, elected institutions to represent them and protect their interests.
The Carter Center will publish a final report of its observations during the electoral process as well as recommendations for the next round of elections. The Center thanks all of the actors in the electoral process for taking the time to meet with and provide information to observers. The Center will continue to monitor developments in the DRC and will contribute at any opportunity to bring added value to the reinforcement of democratic institutions.
Background: The Carter Center international election observation mission began on Aug. 17, 2011, following an invitation from CENI. The mission was led by former President of Zambia Rupiah Bwezani Banda and Carter Center Vice President for Peace Programs Dr. John Stremlau, and is composed of 70 observers from 27 countries.
The Center's observation mission in the DRC is conducted in accordance with international standards for elections, and the observation mission was conducted in accordance with the Declaration of Principles for International Election Observation and the Code of Conduct for International Observers that was adopted at the United Nations in 2005 and has been endorsed by 37 observation groups.
The Carter Center also supported the training of some 6,000 domestic observers deployed with CEJP/CENCO.
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1. The DRC has ratified a number of international and regional treaties through which it has obliged itself to follow certain key human rights standards. Article 215 of the Congolese Constitution importantly notes that international treaties and covenants that the DRC signs or ratifies are superior to any national laws, barring any formal reservations the DRC may have expressed.
2. "An electoral body, however styled, must act with a maximum of transparency, where appropriate consulting in a meaningful way with interested parties before decisions are taken on important matters and being prepared to give reasons for such decisions." Commonwealth Secretariat, Commonwealth Secretariat Good Commonwealth Electoral Practice: a Working Document, para. 9
3. "An independent and impartial authority that functions transparently and professionally is internationally recognized as an effective means of ensuring that citizens are able to participate in a genuine democratic process, and that other international obligations related to the democratic process can be met." UNHRC, General Comment No. 25 para. 20
4. " Take all necessary measures and precautions to prevent the perpetration of fraud, rigging or any other illegal practices throughout the whole electoral process, in order to maintain peace and security." SADC, Principles and Guidelines Governing Democratic Elections, para. 7.6
5. "There should be immediate release of official election results on completion of counting." SADC PF, Norms and Standards for Elections in the SADC Region, para. 11.ii
6. The Supreme Court is the competent body until creation of a Constitutional court.
7. "When the counting process is completed the results should immediately be announced and posted at the counting station." EISA and Electoral Commission Forum of SADC Countries ,Principles for Election Management, Monitoring, and Observation in the SADC Region, p. 26
8. "Every individual shall have the right to liberty and to the security of the person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained." Article 6, AU,African Charter on Human and Peoples' Rights
9. "Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, law, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal." Article 7, AU, African Charter on Human and Peoples' Rights
10. State practice notes that effective dispute mechanisms are essential to ensure that effective remedies are available for the redress of violations of fundamental rights related to the electoral process. Article 40, the SSRC Rule and Regulations on Polling, Sorting, Counting and Declaration of Results.