The US response to the elections

On Thursday, the US Senate held a hearing on elections in the Congo. It is worthwhile reading the statement submitted by Assistant Secretary of State for Africa Jonnie Carson. After stating that the elections "were deficient in many ways," he says:

We continue to advocate that all Congolese political leaders and their supporters act responsibly, renounce violence, and resolve any disagreements through peaceful constructive dialogue and existing legal remedies.  We believe that a rapid technical review of the electoral process by the Congolese authorities may shed light on the cause of the irregularities, suggest ways in which governance could be structured to give better effect to the will of the Congolese people, and provide guidance for future elections (my italics).

At the moment I write this, the Supreme Court has apparently rejected Kamerhe's lawsuit and will no doubt confirm Kabila as president, so the "existing legal remedies" have been exhausted. As far as I can tell, this statement means the United States is not calling for anything but a technical review to "provide guidance for future elections,"  not to provide redress for this vote.

One of the reasons seems to be the following logical fallacy: There were serious irregularities, but we don't know if these would have changed the outcome of the elections - so we shouldn't be so alarmed? I admit, I am paraphrasing, but that logic has been expressed by the Congolese government, as well as perhaps even by Carson:

It is important to note that we do not know—and it might not be possible to determine with any certainty whether the final order of candidates would have been different from the provisional results had the management of the process been better.

It's not clear to me how this matters. If there were massive irregularities, and we don't know who won - isn't that a good reason to push for steps to address the flaws in the current elections, not just to make policy five years down the road? Instead, the Congolese government has interpreted this as meaning, "we don't call into question who won the elections," which neither the Carter Center or EU missions said. Instead, these missions concluded: We don't know who won these elections. And we should.

The testimonies by Carson, as well as those of Tony Gambino (ECI), Mark Schneider (ICG), Mvemba Dizolele (Hoover Institution) and Jonnie Carson can be found here.

Will Kamerhe's lawsuit succed?

Shortly after Vital Kamerhe submitted a lawsuit to the Supreme Court yesterday, doubts were raised in public and private about the case. (You can read it here). In the complaint, Kamerhe asked for the cancellation of the polls and a new vote.

Of course, the main doubt about Kamerhe's success resides in the perceived bias of the Supreme Court - just a month before elections, the president named 18 new judges to add the eight previous members, ostensibly to help with their heavy work burden. However, many opposition and civil society members think that these newcomers are politically biased.

Other doubts have also been raised regarding Kamerhe's complaint.

Le Potentiel, hardly a newspaper favorable to the government, suggested that Kamerhe may not have fulfilled the legal requirements. The electoral law requires complaints to be filed either in the name of an organization or as an individual. Kamerhe submits his claim in the name of his UNC party (although I'm not sure he annexed his nomination as president of the party), which leaves him unable to raise points concerning Tshisekedi and the opposition as a whole. I am not too concerned by this procedural nuance, as the UNC is not arguing the fine points of the elections - he wants the whole thing to be cancelled, so it doesn't really matter whether he does this in the name of the opposition or the UNC.

I am more concerned by the substance. I am not a lawyer, but it seems to me that a lawsuit should submit as much proof as possible to substantiate its claims. In this document, the UNC makes the following points:

• The voter list should be published and posted in polling stations thirty days before the vote. It was not;
• The list of polling stations itself should be published 30 days before the vote. It was not;
• In many polling stations, opposition witnesses were not allowed to sign the proces verbaux (minutes) and were prevented from accompanying the ballots from polling station to compilation center;
• UNC witnesses were not given access to the National Treatment Center were comprehensive results were compiled;
• Pre-marked ballots favoring Kabila were found before elections began, and in many polling stations there were not enough ballots for the voters;
• Kabila used state assets for his campaign, including airplanes and public vehicles, and putting posters on public buildings;
• Finally, he cites around a dozen polling stations with suspicious results.

All of these complaints may well be true; they mirror what the Carter Center and the EU have said. But there was no proof (PVs, pre-marked ballots, police reports, affidavits) that accompanied this claim, at least to my knowledge.

One problem was that Kamerhe had little time to produce the lawsuit - the law only provides for two working days after the declaration of preliminary results. The Supreme Court then only has 7 days to judge the matter.

One positive note is that the Supreme Court has decided to hear the case in a public hearing, not behind closed doors as was initially feared.

Random thoughts and facts

In no particular order:

1. Kamerhe officially challenged the election results at the Supreme Court in the name of the opposition. I don't know what exactly his case is, or what it means that he submitted it for the entire opposition (Tshisekedi's son Felix was with him when he submitted the claim). The Supreme Court has until Saturday to pass a verdict. They have the mandate to confirm the election outcome, or to invalidate all or part of the results. I'm not sure whether they can also say they need more time - given the number of irregularities, I don't know how they could possibly pass judgement in four days. As has frequently been reported, 18 new judges were named to the Supreme Court just weeks before the elections, giving rise to accusations of bias toward the presidency.

2. As has been widely reported, the Catholic Cardinal Monsengwo has panned the elections, saying the results are "not conform to the truth or to justice." In a radio interview, he also seems to be saying that he think Tshisekedi has won the elections. Shortly afterwards, however, the head of the protestant Church of Christ in the Congo, Marini Bodho, shot back: "These elections do conform to the truth and justice." A battle of the men of the cloth; the elections might have an impact on state-church relations for some time. (Ngoy Mulunda was reported as reacting: I had expected nothing less from the Cardinal). Meanwhile, Amnesty International was forced to publicly dismiss a press statement released in its name endorsing the election results.

3. However, Ngoy Mulunda has now hit back, saying that the Carter Center did not have a comprehensive view of the results, as they were only present in 14,79% of voting stations. 

4. There has been some talk about the vote par dérogation (h/t to Mwana Kin). This is the list of people who are allowed to vote outside of the districts where they registered. It is usually for state employees who have to travel for work, including the families of security personnel and election officials. This year it was incredibly high: over 3,5 million out of 18,9 million voters, almost 20% of voters. In 2006, the number of votes by derogation was denounced by observers, and it was only 6,6%. The reason this list is dangerous is that it eliminates one of the safeguards against fraud, namely checking the name of the voter against the list of voters provided to the polling station in advance. If, for example, someone had been able to obtain a fake voter card, as well as an official "ordre de mission" saying he had to travel during this period, she would be able to vote anywhere she wanted to.

In this case, my guess is that the flawed voter registers led to such huge listes des dérogations. Because of confusion in the run-up to the vote, many voters were not able to find the polling stations where they were supposed to vote. So the election commission decreed that voters could vote anywhere in the district where they had registered. But since election officials could not find their names on the voter registers, they were placed on the liste des dérogations, instead of the liste des omis as they should have been. In fact, I have not seen a liste des omis, leading me to wonder if they just merged the two.

4. A few other strange results that have popped up in recent days. How come the turnout rate for the remote province of Walikale, where voters had to walk long distances to get to polling stations, was 92%, while that of the rest of the province was 63%? In the same province, Kivu Confidential highlights the almost perfect scores that Kabila got in areas controlled by CNDP troops, averaging 96%. Meanwhile, on the other side of the country, why did the territory of Kwamouth in Bandundu have a turnout of a measly 26%, in contrast to the 56% average for the province? None of these facts are proof of anything, just peculiarities worth looking into.

5. Missing results: In addition to the roughly 2,000 missing polling stations in Kinshasa, there are 156 mission stations in Kiri (Bandundu) and 122 in Mbuji-Mayi. The Carter Center said there may be over 1,000 polling station outside of Kinshasa that have not been counted. The number of voters per polling station varies, with most seeing between 300 and 500 voters.

As criticism of election proliferates, time runs out for opposition

Joseph Kabila was proclaimed winner of the presidential elections on Friday, obtaining 49% of the votes. Etienne Tshisekedi was a distant second, with 32%.

As expected, many Congolese have rejected the results, setting tyres on fire in Kinshasa and launching isolated protests around the country. Tshisekedi has now announced a large opposition demonstration in Kinshasa and other cities for Tuesday, while the opposition UNC party will hold a protest today in Bukavu, focusing on both the election results and the killing of two students over the weekend.

It is not only some Congolese who find the results hard to believe - foreign observers have also expressed skepticism. The Atlanta-based Carter Center published a brief report on Saturday, saying the results "lack credibility." The European Union will be publishing a report today or tomorrow, reportedly with very similar conclusions.

What are the main problems with the vote?

Perhaps the most obvious flaw is the loss of ballots of between 3,000 and 4,000 polling stations around the country, including 2,000 from Kinshasa and all the results from the territory of Kiri in Bandundu. In the case of the lost Kinshasa votes, some foreign observers believe that these are the same polling stations that Ngoy Mulunda had wanted to invalidate earlier in the week, but was forced to set aside after protests from observers.

Then there are the suspicious turnout figures. In several districts, turnout was almost 100%, rates the Carter Center finds "impossibly high." This was the case in several territories of northern Katanga, Joseph Kabila's home turf (or, to be more precise, that of his father). The problem was not just the high turnout, but the fact that it coincided with almost 100% support for Kabila. In the territory of Malemba Nkulu, for example, turnout was 99,46%, with not a single one of the 266,866 votes going to anyone but the incumbent. In Kabongo territory, Kabila also received a perfect score (turnout was 91%), while in Manono, where Kabila received 99,98% of the vote, turnout was 100,14%.

While Tshisekedi received very high scores in the Kasais, as well, turnout there was much lower, around 50-60%. The national turnout was 58 percent.

Some observers have told me that one way of detecting suspicious turnout figures is to calculate how many voters cast their ballots in a polling station on election day, then multiplying by the number of minutes it takes them on average to cast a vote, taking into account that several people can vote at the same time. If the total is over 20 hours, it is likely that there was something wrong with polling in that station.

Another figure that raised eyebrows were registration numbers. In some rural parts of northern Katanga, the growth in registered voters since 2006 is more than double the national growth rates. In Manono, for example, the number of voters grew by 52% in five years, while in four other Katangan territories growth was over 38% in the same period. The national increase in voters between the two elections was 26%.

Finally, the process was flawed. Ballots were seen transported by private means - in several cases even by candidates - and in some cases ballot bags were opened and altered in violation of official procedures. The Carter Center suggested that in 15% of the compilation centers, security personnel could have influenced compilation; they also pointed out that some election official obstructed access for observers, including in the National Results Center in Kinshasa. In one flagrant case in the capital, the compilation center was closed and when it re-opened a large number of ballots had gone missing.

I should emphasize that none of the observers I have spoken with has weighed in on what he or she thinks the real results were. Tshisekedi would have to win 1,5 million votes and Kabila lose the same number for the final results to change.

What next? The opposition has until tomorrow to contest the results officially, or the Supreme Court may just confirm Kabila as the winner (at the moment of writing, I don't think the UDPS had done so). The opposition has little faith in the court, as in the run-up to elections a large number of new judges were appointed,  many of whom reportedly favorable to Kabila. If a suit is filed by tomorrow, the Supreme Court only has until Saturday to consider it before it has to announce a winner. That amount of time is clearly insufficient given the complexity of the results.

Time is hence of the essence. Several solutions have been bandied about in diplomatic circles, some of which involve the creation of an independent commission to audit the results and propose a solution. Who should be a member of the commission and to whom should it report? Not clear - the United Nations is very unlikely to take on this kind of role, given the politics in the Security Council. The southern African body SADC, which sent the largest observation mission, is seen by the opposition as pro-Kabila, and South African President Zuma has approved of the official tallies. Others have suggested that a mediator or special envoy should be appointed. However, Kofi Annan has reportedly already turned down an offer - other names that have come up are John Kufuor and Alpha Oumar Konare.

What could a possible solution look like to electoral disputes? Here, again, different solutions are being mulled over. The official line, taken by many diplomats, is that legal avenues should be pursued - i.e. the Supreme Court. However, as mentioned, the opposition does not find this credible. The UN Secretary General Ban Ki-Moon added that mediation efforts should also be considered, notably by the National Mediation Commission. But many members of this commission, named shortly before the elections, are also considered to be close to the presidency.

Some suggest that there only needs to be a re-tally of the results put together at the 169 compilation centers (CLCR). That, however, would not be able to come to grips with the kind of fraud listed above. Others have suggested a re-vote in selected areas with reported irregularities, a solution that would not address problems of the voter register, but could address many of the other irregularities. Another solution that I have heard of would be to hold another presidential vote, just between Kabila and Tshisekedi - this run-off ballot, however, would contravene the electoral law, which states that the presidential ballot is a one-round, plurality-wins vote.

The longer it takes to decide on a way forward, the more likely it is that the Supreme Court will declare Joseph Kabila winner and Tshisekedi's supporters will take their frustrations to the streets.

As election results approach, a long road lies ahead

Kinshasa was in a weird mood this evening, as parts of town celebrated, thinking Tshisekedi had won the polls. Elsewhere, people sulked, thinking that Kabila had been declared victor. But as this went to cyber-press, the electoral commission had just pushed back the final announcement to Friday. According to one source close to the election commission, the vice-president from the political opposition was blocking the announcement, refusing to sign off on the final figures until the commissioner had agreed to publish disaggregated results by polling station at the same time. According to the election commissioner, they needed "to cross-check results received from across the country."

But it would be good at this time to remember that this announcement is not the end of the process. Even if Kabila is declared victor, as is expected, the opposition will contest the results, both in the streets and in courts. If this scenario plays out, two factors will be key: how many people Tshisekedi can mobilize in the streets, and how clear it is that the elections were rigged.

For the former, there is no doubt that Kinshasa would seethe with anger if Kabila was declared victor. But thousands - perhaps tens of thousands - of soldiers and policemen are deployed in the streets, and the game would almost certainly be to disperse any crowd that was trying to gather, with rubber bullets, tear gas and even live ammunition. It is not clear how long the opposition could hold out and how many casualties the regime would be able to inflict before one side backed down.

As for the proof of rigging: this is a crucial point, and one I think has not been muddled. We know that there have been widespread irregularities and rigging, probably amounting to hundreds or even thousands of incidents. Some minor, others large. What has not yet been put in the public domain is the exact scale of this fraud. Kabila now leads by over 2 million votes; one would imagine that that kind of lead should be relatively easy to detect. But it will take time to bring this evidence to bear.

The best indicator we have of massive fraud will the the proces verbaux, the minutes from each individual polling station. Witnesses from political parties receive a signed copy of these minutes after the ballots are counted in front of them. So if political parties have enough of these PVs, and they don't match up with those provided by the government, they will be able to prove fraud. Observers like the Catholic church, or the Carter Center, can write down the results but don't have signed copies.

But apparently none of the political parties had complete coverage of the country (I don't know the exact coverage), nor did the Catholic church and NGOs. So they will be able to prove fraud in certain areas, but perhaps not for the whole country - or, at least, it is not clear. In some areas like Katanga, where some have accused the government of stuffing ballots and registering children, there was poor coverage, and in other areas witnesses were chased out of polling stations.

In addition, it is always possible that fictitious polling stations will send in results, where there could be no observers or witnesses because they don't exist. Observers and witnesses would have to go through the final list of polling stations and their results to see which ones did not exist in a particular town or area; after all, when the initial list of stations was released, many observers complained that there were numerous stations that didn't exist or were at the wrong address.

All of this will take time. It may be, of course, that there is no doubt, that the gap between the two candidates is too large, or that there are so much proven fraud that the election must be thrown out.

But it is also possible that we never get an exact real count of the vote, and - if the election is close - that doubts will remain about the possible winner. This would be the worst scenario, as it would leave is in legal and political limbo. But some actors seem to be preparing for exactly this. There is talk of mediators at the UN - Kofi Annan was reportedly asked to come to help "mediate," but he said he would not be able to make it (because he was too busy or didn't want to be involved in such a messy process?). Others suggest that the South Africans have been positioning themselves for this kind of "mediation". The reason for the inverted commas is that, as of now, there is nothing to mediate, we still believe that we will find out who won the polls.

But what if we don't? I know this is anathema to many Congolese, who firmly believe that their candidate won. I also have my guesses and inclinations (it's better not to air them here), but proof may be harder to come by that we think and hope.

In any case, there will also be a race against time. The electoral calendar says the Supreme Court will confirm the final results on December 17, which only leaves eight days for the defeated party to sue in court.

Preliminary analysis of results

Yesterday we got the fifth installment of election results. The election commissioner says we are now at 89,29% of total votes. While they did not want to declare a winner until Friday (they have postponed the results), it is virtually impossible for Tshisekedi still to win. That is, if these results are correct.

By my back-of-the-envelope calculus, Kabila now has 8,353,573 votes and Tshisekedi 5,927,528, with only around two million votes left to count.

So what does a preliminary analysis of the votes that have been counted say?

Here are the current figures by province, with turnout and Joseph Kabila's percentages for both rounds of 2006 elections.

Province	Kabila	Kabila 2006 1st round	Kabila 2006 2nd	Tshisekedi	Turnout
Bandundu	63%	3%	40%	20%	57%
Bas-Congo	20%	14%	25%	74%	56%
Equateur	10%	2%	2,8%	36%	51%
Kasai-Occ	15%	11%	23%	79%	50%
Kasai-Or	20%	36%	32%	71%	50%
Katanga	90%	77%	93%	7%	68%
Kinshasa	30%	14%	32%	64%	68%
P Orientale	62%	70%	79%	14%	62%
Maniema	87%	90%	98%	3%	57%
North Kivu	37%	77%	96%	22%	62%
South Kivu	45%	95%	98%	9%	69%

 There are a few comments to make, all with the proviso that these are preliminary results.

Kabila scores surprisingly high in Bandundu - he did receive the endorsement of Antoine Gizenga, who helped him get a good result in the province in 2006. But even then, he only got 40% of the votes there - he has increased his score to 63% of votes now. While there are tensions between the Luba (Tshisekedi's community) and other groups in the province, this result is still striking.

Kabila also scores surprisingly well in areas with large Luba communities - the Kasais, Kinshasa and Lubumbashi. In the Kasais, it is striking that the turnout remained low, barely higher than 2006, when many boycotted the vote. Considering how immensely popular Tshisekedi is in part of these provinces, this is strange (but is surely linked to the violence on election day). It is also strange that Tshisekedi would get almost the same results as Bemba in Katanga - there is a very large Luba community there, and tensions between southerners and northerners (Kabila's community). As for Kinshasa, few people in this opposition stronghold thought Kabila would be able to hold onto 30% of the vote there.

People in South Kivu have also been scratching their heads about Kabila's score there - he has fallen out of favor with many in the province, and Kamerhe was considered to be a favorite by many. However, there is probably an urban bias against Kabila, and most of the people I have spoken to are in urban areas. Equateur is also a bit puzzling, as it is difficult to see how the president gained in popularity in this opposition bastion, even if he is still at a low 10%.

If the figures are accurate (despite all of the many allegations of fraud and rigging), then Kabila will have won the elections by gaining support in the West of the country, even as he suffered a steep decline in support in the East. It will also show that his tactic of dividing the opposition worked - a coalition of Tshisekedi, Kamerhe and Kengo would have beaten Kabila, if they had been able to carry over their votes to a common opposition candidate.

Again, this is all still speculation, since there final results have not been announced, and these figures are still steeped in controversy as thick as Masisi mud.

Other views on elections

I am traveling today, but check out the following pieces on elections, by Tony Gambino/Michael O'Hanlon and Emily Paddon/Guillaume Lacaille. I apologize for the lack of Congolese editorials - more of those soon.

http://www.opencanada.org/features/beyond-elections-congo/

http://globalpublicsquare.blogs.cnn.com/2011/12/06/congos-crucial-crossroads/