24 02 12 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.[1] 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:
· general absence of
transparency in CENI communication about election operations;
· poor access to information on
CENI arrangements for delivery, receipt, and processing of polling station
results and ballot papers at tabulation centers;
· insufficient engagement by the
CENI with political parties and presidential candidates;
· violations of peaceful
assembly rights during the campaign and post-election periods and inappropriate
use of force by Congolese police and other security forces to disperse gatherings;
· absence of observer access to
CENI national results center;
· multiple delays in the
two-month long tabulation of legislative results;
· failure of CENI to publish
polling station results for the legislative election (in contrast to positive
step to do so for the presidential election);
· inadequate level of
accountability for those responsible for the loss of polling station results in
Kinshasa and other provinces; and,
· the non-publication of
judicial decisions by the Supreme Court.
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.[2] 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.[3]
Tabulation
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.[4] 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.[5]
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.[6] 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.[7] 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.
Results
Analysis
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.
Opposition
Boycott
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.[8]
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.[9] 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.[10]
Civil
Society
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.
Conclusion
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.
####
"Waging Peace. Fighting Disease. Building Hope."
A
not-for-profit, nongovernmental organization, The Carter Center has helped to
improve life for people in more than 70 countries by resolving conflicts;
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nations to increase crop production. The Carter
Center was founded in 1982 by former
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to advance peace and health worldwide.
[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.
[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.