Blogging problems

My blog was down for a short period several days ago. It's still unclear why Blogger took it down, although "irregular access" appears to have played a role. I'm still trying to find out more. Thanks to those who expressed concern.

Siasa hiatus

I will be absent from this space for a few days. It's a shame - so much to discuss: Kabila's inauguration, attended by the full diplomatic corps of Kinshasa, along with Robert Mugabe. Hillary Clinton's strong statement on the elections, slamming the Supreme Court's cursory treatment of Kamerhe's dispute. Tshisekedi's increasingly radical statements - arrest Kabila! - juxtaposed with his reluctance to call his supporters out onto the streets. The ongoing controversies over irregularities in the legislative polls, as first results are released (no trends yet, although Moba had some weird results, now posted on the CENI website).

Anyway, happy holidays to all.

Statement on Congolese elections

Below is a statement released by a group of concerned individuals and organizations this morning, ahead of President Kabila's inauguration.

December 20, 2011

We, the undersigned organizations and individuals, are deeply troubled by the lack of critical engagement that the international community has shown throughout the electoral process in the Democratic Republic of the Congo. The Carter Center, the European Union, the Catholic Church and other national election observation organizations found that the elections held on November 28, 2011 were deeply flawed and marred by widespread irregularities. In order to prevent further violence and provide legitimacy to the government, we call on the United States and other members of the international community to take these immediate steps:

1) State clearly that they do not perceive the election results as legitimate and call on President Kabila to delay his inauguration ceremony until steps are taken to address these serious allegations. If the inauguration proceeds as scheduled, the United States and other international missions should consider non-attendance or at a minimum send a lower ranking diplomatic officer instead of the Ambassador.

2) Immediately ask for the deployment of an independent international mediation commission formed under international and regional auspices. The Commission will have a mandate to review the technical aspects of the electoral process and facilitate a solution to the crisis.

3) Call on the appropriate authorities to immediately halt the counting of the parliamentary election ballots until clear guarantees are put in place to ensure the credibility of the tallying process.

4) Make clear statements that the U.S. and other members of the international community are determined to ensure accountability for perpetrators of electoral and post-electoral violence in the appropriate international or national fora. Call on Congolese state security forces, in particular the Republican Guard, to cease immediately all abuses against civilians.

The following organizations and individuals support this statement:

Eastern Congo Initiative
Enough
Humanity United
International Crisis Group
Open Society Foundations
Anthony W. Gambino, Fellow, Eastern Congo Initiative
Mvemba Phezo Dizolele, Visiting Fellow, Hoover Institution
Jason Stearns

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.