Afghanistan’s 2019 Election (28): ECC starts final, decisive phase of complaints procedure

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The process to determine the outcome of Afghanistan’s 2019 presidential election has moved into its last phase. The Electoral Complaints Commission (ECC) has started to deal with the 6,292 appeals filed against the decisions made by its provincial offices. The ECC has 15 working days to adjudicate the appeals, but it may need more time, given that the most complicated questions have been deferred to this last phase. Moreover, the ECC decisions are likely to result in renewed recounts, which could lead to even further delays. The process is carefully scrutinised, in particular by the teams of the two runners-up, as even relatively small changes in the number and distribution of the votes could change the outcome of the election. AAN’s Ali Yawar Adili answers the main questions surrounding the conclusion of the complaints process.

1. How did the first phase of the complaints procedure – complaints registration – go?

Article 91 of the electoral law provides the following timeframe for complaints regarding the preliminary results:

• three working days for candidates or their agents to file any complaints or objections they may have;
• 15 working days for the provincial ECCs to finalise and publish the results of their adjudications of these complaints;
• three working days for the candidates or their agents to lodge their appeals with the central ECC, if they are not happy with the adjudications by the provincial ECCs; and
• 15 working days for the central ECC to adjudicate the appeals, if any.

The Independent Election Commission (IEC) announced the preliminary results of the 28 September 2019 presidential election on 22 December 2019, almost three months after the vote took place. On the same day the ECC announced in a press conference that it was ready to receive complaints: the complaints process would start the following day, on 23 December, and continue for three days (AAN’s report here). After this three day period, ECC chair Zohra Bayan Shinwari told a press conference on 26 December that the ECC had registered around 16,500 complaints. Around 14,000 of these complaints were about 33 provinces, and around 2,300 complaints were about Kabul. She said that around 8,000 complaints had been lodged by the Stability and Integration team led by Chief Executive Abdullah Abdullah, 4,400 by Peace and Islamic Justice led by Gulbuddin Hekmatyar, more than 3,000 by the Stable Builder team led by President Ashraf Ghani and 15 by the Security and Justice team of Rahmatullah Nabil (AAN’s background on these teams here).

Table 1: Categorisation of complaints by electoral team

Source: Table by AAN using data from ECC’s 26 December press conference

ECC commissioner Qutubddin Roydar told the same press conference that “around 84 per cent of the complaints and objections” had been registered directly with the central ECC. ECC secretary and spokesman Muhammad Qasem Elyasi said that the large volume of complaints registered with the central ECC in Kabul (instead of the respective provincial ECCs) had been beyond their expectation. He said it would be time-consuming to send these complaints to the respective provincial ECCs for adjudication.

2. How did the second phase of the complaints procedure – adjudication by the provincial offices – go?

After the registration of the complaints, the ECC first divided them into 16 categories. The ECC in its bulletin number 23 said that complaints and objections could be classified based on province, subject, nature, priorities and electoral tickets. On 5 January 2020, ECC chair Shinwari provided the details (see Table 2) about how complaints were categorised.

Table 2: Division of 16,545 complaints into 16 categories

Source: Table by AAN using data from ECC’s bulletin 23

The ECC also categorised the complaints in terms of their nature into three sets: electoral negligence, electoral violations and electoral crimes (See Table 3).

Table 3: Categorisation of complaints in terms of their nature

Source: Table by AAN using data from ECC’s 5 January press conference

A third categorisation was based on the priority in terms of their impact on the election results (see Table 4). It is assumed that category A is the highest priority and has the largest potential impact on the election results, followed by B, C and D respectively.

Table 4: Categorisation of complaints in terms of their impact on the election results

Source: Table by AAN using data from ECC’s 5 January press conference

This bulletin also provided a map showing the number of complaints in each province. As shown in Table 5, the provinces with the highest number of complaints were Nangahar (2,283), Kandahar (1,924), Khost (1,587), Helmand (1,439), Kabul (1,400), Paktia (1,283) and Paktika (997). Jawzjan had the lowest number of complaints (4), followed by Samangan (17).

Table 5: Provincial breakdown of complaints related to preliminary results

Source: Table by AAN using data from ECC’s bulletin 23

3. What was the outcome of the adjudications by the provincial ECCs?

The adjudication of the complaints by the provincial ECCs was completed on 13 January 2020, within the specified timeline and despite considerable difficulties. (1) This was announced by the ECC at a press conference on 14 January, where ECC chair Shinwari said that the provincial ECCs made the following decisions:

• 9,866 out of 16,545 registered complaints were rejected due to lack of evidence;
• 18 complaints resulted in corrective actions;
• 5,316 polling stations in 21 provinces were referred for recount;
• 109 polling stations were invalidated;
• 75 individuals were given a cash fine;
• 71 individuals were relieved from their duties;
• 3 complaints were introduced to judicial agencies; and
• 111 complaints were considered exceptional cases (ie, cases the provincial ECCs were unable to adjudicate and had referred to the central ECC).

On 17 January, deputy head of the ECC secretariat, Yasin Hamraz, told AAN that the number of polling stations invalidated was actually 47, not 109. He said that 62 polling stations from Badakhshan, which had been referred for recount, had mistakenly been included in the list of invalidated polling stations. The number of polling stations referred for recount was thus 5,378, not 5,316. The ECC has not provided any details as to how many votes were invalidated from the 47 polling stations or which candidate these favoured most. The recounts, as will be discussed below, have also not yet commenced, so it is too early to predict how the election results might be affected.

Table 6 (see here for the higher resolution) shows the overview of the decisions by province (with the corrected details as provided by Hamraz).

Table 6: Adjudications by provincial ECCs of 16,545 complaints. Source: election stakeholders

The 111 exceptional cases, the ECC said, are the complaints which the provincial ECCs did or could not adjudicate and referred to the central ECC. They include four important areas of complaints that concern large numbers of votes: the 102,012 votes cast outside polling hours, the 137,630 votes that have been deemed suspicious, an unknown number of votes that are affected by discrepancies between the biometric votes and result forms, and the votes of 2,423 stations whose biometric data are missing (media reports here and here).

The IEC has included these sets of votes in the preliminary results, including votes from 298 out of 2,423 polling stations with missing biometric devices/memory cards and biometric data. On 7 November 2019, through decision number 105, the IEC ordered the audit and recount of votes from 2,423 polling stations where biometric devices or memory cards, and thus biometric data, were missing (see AAN’s reporting here). After the recount and audit, the IEC, decided that the result forms of 298 of these 2,423 polling stations should be processed, ie included in the count, because respectively the audit and recount report showed that the ballots of these polling stations had biometric confirmation stickers, no complaints had been registered against them, and the biometric devices of 82 of these stations had been checked and fount to show 1,746 sets of biometric data (they did not explain how and where they had found the biometric devices; see decision number 116, dated 21 December 2019, in Dari here). Two IEC commissioners, Mawlana Muhammad Abdullah and Mosafer Qoqandi, refused to sign this verdict.

The provincial ECCs have, in turn, ordered almost 5,400 polling stations to be recounted. ECC secretary and spokesman Elyasi said during the 14 January press conference that the plan for the recount would be shared with the IEC within two days. Now, more than a week later, the recount has still not started (more on this below).

4. How did the third phase of the complaints procedure – registration of appeals against ECC decisions – go?

According to the electoral law, complainants can register their appeals with the ECC within the three working days following the announcement of the decisions. In the end, the appeals period continued until 20 January. According to a deputy spokesperson, Zarmina Kakar, the adjudications in three provinces – Kabul, Khost and Paktika – were communicated to the parties only on 15 January. Therefore the period was extended in order not to waste the electoral campaigns’ right to appeal (media report here). (2)

ECC chair Shinwari told a press conference (see video here) on 21 January that 6,292 appeals had been made. The highest number of appeals were registered in Kandahar (1,573), Paktia (853), Nagrahar (818),Khost (772), Kabul (505) and Paktika (485). No appeals were lodged in the five provinces of Parwan, Maidan Wardak, Takhar, Jawzjan and Badghis.

Table 7 (see here for higher resolution) shows the result of the adjudication of the 16,545 registered complaints per province that may affect the outcome of the election, as well as the number of appeals. The final adjudication was as follows: 9,864 complaints rejected, 5,378 polling stations ordered to be recounted, 47 polling stations invalidated, and 111 exceptional cases referred to the centre.

Table 7: Provincial breakdown of complaints, adjudications by PECCs and appeals. Source: election stakeholders

Shinwari said that the central ECC had started addressing these appeals by going through the following procedure: categorisation, examination, analysis, scrutiny, decision, communication and implementation of decisions. Shinwari also said that the central ECC had not yet made any decisions about the decisions by the provincial ECCs.

ECC commissioner Sayed Qutbuddin Roydar said that all appeals had been registered by the three major electoral tickets – Stability and Integration led by Chief Executive Abdullah, State Builder led by President Ghani, and Peace and Islamic Justice led by Gulbuddin Hekmatyar – but did not provide details on how many appeals had been made by each ticket.

The two main teams, however, did release numbers. On 19 January, a member of Abdullah’s Stability and Integration team, Nur Rahman Akhlaqi, wrote in a Facebook post that Abdullah’s team had completed its process and had filed 4,370 appeals with the central ECC. A spokesman for President Ghani’s State Builder team, Ahmad Folad Hamdard, told the daily Hasht-e Sobh that their team had lodged 1,164 appeals with the ECC. If correct, this indicates that a total of 5,534 appeals could have been registered by the campaigns of the two main contenders, and a total of 758 appeals by Hekmatyar’s ticket.

ECC secretary and spokesman Elyasi said that the appeals revolved around the following issues: the discrepancy between the biometric data and the votes recorded on the result sheets, votes cast outside the polling hours, non-biometric votes, suspicious votes, and a relatively small discrepancies of votes (between one and five).

While at the 14 January press conference, ECC commissioner Elyasi said that the ECC would share the recount plan with the IEC within two days; at the 21 January press conference he said that they were still debating whether the polling stations referred by the provincial ECCs for recount should be recounted immediately, or only after the central ECC had addressed the appeals against the decisions ordering the recount. He said that the ECC had not made any decision yet, but that after categorisation of the appeals they might be able to develop a better understanding as to how many polling stations needed to be recounted and when.

He also said that different provincial ECCs had dealt with the same type of complaints in different ways. For example, in the case of complaints against votes cast outside polling hours, in some provinces the ECC had treated these complaints as exceptional cases that needed to be referred to Kabul, some offices had rejected them, some had confirmed them and some had referred the polling stations for recount. According to him, if they did the recount now, they would be implementing only one type of decision in this category of complaints. Therefore, he said, the ECC needed to first unify the decisions. (3) The unification of different decisions within the same category of complaints implies that the number of polling stations referred for recount could still significantly go up, as well as down.

Speaking to AAN on 22 January, the executive director of the Free and Fair Election Forum of Afghanistan (FEFA), Yusuf Rashid, criticised the central ECC for not having communicated a guiding, principled stance to the provincial ECCs on how to deal with the major types of disputed votes. He said that if the ECC had taken a clearer position on those votes, the provincial ECCs would have taken unified decisions. Rashid believed that different decisions about the same complaints might have also been made in the complaints process of the parliamentary elections, but since the constituency for the presidential election is the entire country, it was now easier for the different electoral tickets to recognise that this had been the case, since they were following and cross-checking the procedure in all provinces.

5. What happens now?

Officially, the central ECC now has 15 working days, starting from 21 January, to adjudicate the 6,292 appeals made by three electoral tickets in 29 provinces. If all goes to plan, the outcome of the adjudications could be expected by 8 February.

However, several challenges lie ahead of the central ECC. First, it needs to categorise and map the apparent mess created by the varying adjudications by its own provincial offices. As mentioned above, the provincial ECCs made four different types of decisions about complaints regarding votes cast outside polling hours alone.

Second, the central ECC needs to make the tough decisions about certain major blocks of votes that have been disputed by many electoral tickets, in particular by Chief Executive Abdullah. These include the 102,012 votes cast outside polling hours, the 137,630 ‘suspicious’ votes, and the votes from the 298 polling stations. Some provincial ECCs might have rejected complaints about these votes or about some of them, some might have referred them for recounts, some might have invalidated them and some might have referred them to the centre. There are probably appeals against all these different decisions by the different electoral tickets, which the ECC may decide on individually, but the ECC could also decide to deal with all similar cases in one go (which could involve block invalidation or validation, either with or without recounts).

Third, the ECC needs to come up with the final list of the polling stations that need to be recounted as soon as possible. Currently, the provincial ECCs have referred 5,378 polling stations for recount. There seems to be some appeals against these decisions. The central ECC now needs to decide whether it confirms the existing list of polling stations or adds to it or decreases it. Once the ECC is clear about the number of polling stations to be recounted, the recount still needs to take place, which may take more time.

So although in terms of procedures, the process is approaching its end, many of the most complicated questions on how to deal with relatively large numbers of suspicious, disputed or irregularly cast votes will only now be faced. The confusions and ambiguities surrounding the complaint process, and the unresolved question of how the ECC may deal with these thorny issues, make it difficult to predict whether we might still be facing a first-round winner or whether we will need to prepare for a runoff. Given the very small margin that put President Ghani above the 50 per cent threshold in the preliminary results (less than 12,000 votes; see AAN analysis here), invalidation of any of the disputed blocks of votes – or even less far-reaching decisions – could easily push Ghani’s share under the threshold.

Edited by Martine van Bijlert

(1) In the process of addressing the complaints, ECC officials had criticised the IEC for not cooperating. For instance, on 6 January 2020, head of the ECC secretariat Chaman Shah Etemadi accused the IEC of procrastinating in providing the necessary user account and password details to the provincial ECCs, which, he said, would prevent them from addressing “complaints emanating from the difference between the biometric and non-biometric votes.” The IEC responded by saying that they had already acted according to the memorandum of understanding between the IEC, the political parties and Dermalog (the provider of the biometric technology) by giving each candidate a user account and giving the ECC two accounts. Etemadi, however, said that the two user accounts were being used by the central ECC and were not available to the provincial offices (see here). This resulted in what Muhammad Reza Fayaz, deputy spokesman for the ECC, called the “wastage of the candidates’ right to appeal” since the adjudication of complaints regarding the difference between biometric voter data and the result forms now had to be referred to the central ECC, where the decision will be final.

(2) The period for appeals seems to have started in each province as soon as the adjudication of complaints was finished. For example, on 12 January 2020, Muhammad Reza Fayyaz, deputy spokesman for the ECC, told Hasht-e Sobh that a number of campaigns had filed a total of 39 appeals in five provinces against the decisions communicated by the respective provincial offices. These included 28 appeals in Zabul, two in Urozgan, three in Sar-e Pul, three in Badakhshan and three others in Panjshir. Explaining the procedure to AAN on 13 January, Fayyaz told AAN that whenever a provincial office makes a decision about the complaints, one copy is provided to the complainant, one to the person implicated in the complaint , one to the relevant provincial IEC and one to the observers.

(3) The different and conflicting decisions by the provincial ECCs seem to have been one of the main reasons for the registration of a high number of appeals. According to a member of Abdullah’s Stability and Integration team, Nur Rahman Akhlaqi, in a Facebook post on 19 January, the central ECC now faces the following list of challenges:

• The provincial ECCs had made different decisions about the same complaints, which the ECC has to unify in accordance with the electoral law, and relevant regulations and procedures.
• Provincial ECCs rejected many “valid and documented complaints” which the ECC has to carefully clear and ensure their transparency.
• The previous recount (by the IEC, see AAN’s reporting here) has in many cases led to “double fraud” about which complaints have been filed and although the IEC opposes the [renewed] recount out of fear of legal consequences, the ECC should give preference to the law over “any illegal and treacherous pressures.”
• The separation of fraudulent and non-fraudulent votes needs to be done through a QR code reader that needs to be updated based on new decisions; otherwise, they may bring back fraudulent votes which had been separated before.
• A clear decision is needed about the votes without biometric data and the votes that were cast outside the polling hours.
• The ECC needs to seriously deal with perpetrators of electoral violations.

Endnotes:

Revisions:

This article was last updated on 9 Mar 2020

Tags:

ECC election president Presidential election

Authors:

Ali Yawar Adili

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