Aftershocks of a Procedural Ambiguity: The IEC and ECC dispute over which votes to validate

November 02, 2018

When the Independent Election Commission (IEC), at the last minute, introduced the use of biometric machines in the Wolesi Jirga election, it approved a procedure stipulating that the votes cast without the new system would be invalid. But it never decidedly clarified what it would do with the polling stations that failed to use them. Then, on election day, the IEC allowed voting in those stations. It has since found itself struggling to decide what to do with the votes that were cast without biometrics. In response, the Electoral Complaints Commission (ECC) stepped in to try to force the IEC to implement its pre-election day procedures. The controversy has, for now, resulted in a compromise that clarifies the criteria for the validation and invalidation of votes, but is unlikely to pre-empt the problems that will continue to flow from the chaotic implementation of the new system. 

The problem: Unclear IEC procedures on how to deal with the malfunctioning of the biometrics

The decision by the Independent Election Commission (IEC) to introduce biometric machines in the October Wolesi Jirga elections was made at the last minute and under heavy political pressure (see here for details). As a result, the IEC did not have sufficient time to receive and ship the devices to the provinces, train personnel in how to operate them, or think through the possible problems they might face. While the IEC said the biometric machines would be an important anti-fraud measure, it never definitively clarified what it would do if they were not delivered to the polling centres (a polling centre has at least one male and one female polling station) or if the separate polling stations (within the polling centres that did receive the devices) failed to use them. The scenarios were manifold: The machines were not delivered to polling centres at all, they were delivered but did not work, the employees could not operate them, they were used at the beginning of the day but stopped functioning during the day, their printers ran out of paper, etc.

The IEC’s pre-election day procedure regarding the use of the biometric system had prescribed that ballots without biometric stickers would be considered invalid (the biometric sticker – with the polling centre code, date of voting, time of voting, a unique code and an encrypted QR image – was to be printed and attached to the ballot paper after the voter’s biometric data was captured ). The IEC’s procedure, however, fell short of specifying how votes from polling stations where no biometric machines were used at all would be treated. (1)

As anticipated, it emerged in the early hours of voting on 20 October that biometric machines had not been delivered to some polling stations or failed to work or employees were unable to operate them. This prompted the IEC to take an impromptu decision (No 89-1397), which was read at a noon press conference on the first day of the election (see also AAN’s previous reporting here). It said:

In polling stations where the biometric machines failed to work or have not been delivered, technical options [unclear what this means] should be used to solve the problem. If the problem remains [unresolved], contingency machines or the machines belonging to closed polling centres should be used. If the problem still remains [unresolved], the voting should continue based on the voter list and people should be allowed to vote. At the end, the polling station chairperson and monitors should write the issue in the journal in detail and get the approval of the agents and observers.

While this decision authorised the polling station officials to conduct the voting without biometric machines (if no machine was available), it did not rule expressly on the validity of those votes. But it did appear to indirectly revoke the IEC’s earlier decision that votes without biometric QR stickers would be counted as invalid (as it makes no sense to allow voting if the votes will not be considered valid). The IEC’s failure to clarify this point later put it at loggerheads with the ECC.

Scope of the problem: How many polling stations did not use biometric machines?

There is no real clarity on how many ballot boxes may be affected by the controversy. The IEC has been giving conflicting figures. IEC chairman Gula Jan Abdul Badi Sayyad, on 24 October while inaugurating the IEC’s national tally centre, said that biometric devices had not been used in more than 20 per cent of the polling centres across the country and that IEC employees were trying to tally the votes of those centres more carefully (media report here). Other media (see here and here quoted the IEC as saying that the machines had not been used in around 20 per cent of the polling centres, either because the machines had not been delivered or faced technical problems. IEC spokesman Hafizullah Hashemi, on the other hand, told the BBC on 28 October that they had provinces on their list where biometric devices were used in only 50 per cent of the polling centres.

On 31 October, a deputy spokesperson for the IEC, Zabihullah Sadat, told AAN that the biometric devices had been used in more than 90 per cent of the polling centres. He said that in provinces such as Kunar, Laghman and Panjshir, the biometric devices had been used in 98 per cent of the polling centres, while in some other provinces the biometric machines had been used in 95 or 92 per cent of the polling centres. (The seemingly conflicting figures could both be true at the same time: It is possible that in 20 per cent of the polling centres at least one of the stations had a problem with biometrics and that in 90 per cent of all polling centres at least one station’s biometrics was used correctly. The reality is that ‘polling centre’ is not the relevant unit – the polling station is).

Muhammad Nateqi, the deputy head of Hezb-e Wahdat-e Islami-e Mardom-e Afghanistan and a spokesperson for the political parties,told AAN that the IEC had told the political parties that only 8 per cent of the polling centres had not used biometric machines. He also said that the IEC should validate results coming from the polling centres that had used biometric machines, even if this was done in only 70–80 per cent of all centres, and that in the remaining 20–30 per cent, the IEC could hold a fresh election.

The independent observer organisation TEFA (Transparent Election Foundation of Afghanistan), in its preliminary findings (which it presented in a press conference on 28 October; AAN has a copy of the report), reported the absence of biometric devices in 18 per cent of the polling stations it observed (in 16 provinces) and a malfunction of the devices in 42 per cent of polling stations, “causing hours of delays and eventually forcing workers to continue without using the biometric system.” (TEFA’s preliminary report also said there had been no voter lists in 21 per cent of the polling stations it observed and that the voter lists in the remaining 79 per cent of the centres had problems such as missing names, individuals aged 40 or 50 registered as under-age, and voter lists being sent to the wrong provinces.) (2)

As seen above, there is no clarity and precision on (a) how many (and which) polling centres did not receive biometric devices at all, (b) how many polling stations (and which) in the polling centres that did received the machines could not use them, and (c) how many polling stations (and which) that did use the machines could not use them throughout the election day, for instance because the machine stopped functioning or the printers ran out of paper.

The response: The ECC steps in

In response to the ambiguity, the Electoral Complaints Commission (ECC) issued a decision on 27 October, undersigned by all five commissioners, regarding the “implementation of the criteria to separate valid votes from invalid votes” in the 20 October Wolesi Jirga elections. The ECC said it had taken the decision after analysing “the prevailing situation related to the election, the volume and intensity of the complaints, and legal and technical consultation with a broad range of political parties, election related civil society organisations and the Independent Election Commission, in order to manage the current situation based on its legal mandates.”

In its decision the ECC set the following criteria for the validation or invalidation of the votes:

1. Votes that were cast based on biometric registration and in accordance with the relevant and available voter lists are valid (unless there are other reasons to deem them invalid).
2. Votes that were cast based on biometric registration, in the absence of voter lists but based on a manual list, are valid, if the data matches the original list of the relevant centre (unless there are other reasons to deem them invalid).
3. Votes that were cast based on the official voter list but without biometrics are recognised as invalid as they are in contradiction with the polling and vote counting procedure on the use of biometric machines.
4. Votes that were cast without a biometric barcode and without the use of the official lists are completely invalid. (3)

The ECC’s 27 October decision led to heated discussions as to which commission was actually mandated by the electoral law to rule on the validation or invalidation of the votes. (4)The IEC strongly reacted. On 28 October, IEC spokesperson Hashemi told the BBC that the ECC did not have the authority to declare votes that were cast without biometric data capturing as invalid. He called the ECC’s decision “illegal and immoral” saying: “This was a khod namayi wa nomayish (a swagger and a show) to promote themselves and has no legal basis.”

Political parties and figures, on the other hand, welcomed and supported the ECC’s decision. For instance, Muhammad Omer Daudzai, head of the political committee of the Council for Protection and Stability of Afghanistan (AAN’s background here), wrote on his Facebook page that the ECC’s decision “is praiseworthy and supported by us.” He claimed that “incompetence, various types of obvious and widespread violations, and fraud have caused concern for all the people and political currents of Afghanistan.” The ECC, he said, “has the duty and responsibility to address all complaints and objections carefully and comprehensively. That the [ECC] took such a realistic and correct decision at this sensitive and crucial time is appreciable.”

The Wolesi Jirga also backed the invalidation of votes without biometric verification. Its speaker, Abdul Rauf Ibrahimi, said in the house’s 29 October plenary session: “It was a matter of principle to use biometric machines for transparency in the elections. All the political currents of Afghanistan had reached an agreement on it and now this agreement should be acted upon.” Bamyan MP Fakuri Beheshti said that the IEC staff had not allowed anyone in Bamyan “to vote without biometric verification, but now if the votes without biometric [QR sticker] are also validated, it would be an obvious discrimination because the likelihood of fraud in polling centres where biometric system has not been used is higher.” (see here)

Others questioned the ECC’s decision. For instance, Etilaat Roz wrote on 29 October, “With this ECC decision, the votes of a significant number of the citizens which were cast into ballot boxes without biometric [verification] following the IEC’s decision during the first day of the election would be invalidated and this means disenfranchising a large part of the citizens of Afghanistan.” It further said that the ECC “should not burn the wet and dry together.”

A joint IEC-ECC decision

After the ECC’s 27 October decision, the two electoral commissions (the IEC and the ECC) met to discuss their differences, which they now seem to have reconciled. On 30 October, the IEC and ECC issued a joint statement, laying out the following three criteria for votes to be deemed valid:

Votes can be considered valid if coming from polling stations and centres:

• where voting was conducted based on biometric verification and in accordance with the printed voters list;
• where biometric machines were used based on manual lists (because no printed voter lists were available), provided that the names of the voters on the manual list are recorded in the IEC’s central database [i.e. the voters were registered during the voter registration exercise];
• where the biometric devices were not used but a printed voter list was available (the votes from these polling stations are valid provided that (a) the chairperson of the polling station, and the agents and observers that were present approved [signed] them and (b) there are no complaints and objections against those ballot boxes and the votes inside them). (5)

The joint statement implies that the ECC has overturned its previous ruling where it called for the invalidation of all votes that were cast based on the official voter list but without biometrics but has negotiated the addition of two conditions for them to be considered valid (the observers and agent present had signed their consent and there were no complaints against the ballot box in question). The statement also shows that the IEC has now more clearly derogated from its original procedure on the use of biometric machines, which ruled that ballots without biometric barcode stickers would be invalid.

Yusuf Rashid, the executive director of the independent observer organisation FEFA (Free and Fair Election Forum of Afghanistan) told AAN on 31 October that the two new conditions to validate the votes of polling stations that had the printed voter list, but did not use biometric machines, were not sufficient. He said that it was easy to fake the agent and observer signatures and that even as head of FEFA he could not rely on the signatures of his observers in the remote areas (where they can be easily pressured or bought). He said that FEFA’s advice to the ECC was to treat that category of votes more carefully. Rashid said that, on the other hand, it would also be unfair to invalidate all those votes, because they included genuine votes as well. For instance, in Rabia Balkhi High School in Kabul he observed a couple of polling stations that did not use biometric machines, but where at least 200 voters queued to vote. (The author also observed a large number of voters queuing at one of the four male polling stations in his polling centre in PD six of Kabul that was not using biometric machines (see here).

Political parties’ position and reactions to the joint decision

On 31 October, Muhammad Nateqi, the deputy head of Wahdat-e Islami, told AAN that the political parties would stick to their position that votes from polling stations that did not use biometric machines should be invalidated. He said that political parties had been working on another official statement to reiterate their position on non-biometric votes. The statement (see here and here) was issued the following day, on 1 November. They reiterated “that the votes of the [polling] centres where biometric [for capturing the data] of voters was not implemented are not acceptable to the parties and that the [IEC] can hold fresh elections in those areas.” (6)

The political parties had been the main force pushing for the biometric system (see earlier AAN reporting on how their protests forced the government and IEC’s hand here). Two weeks before election day, on 6 October, political parties had already demanded that biometric verification should be used countrywide and that the votes from polling stations where the biometric fingerprint was not carried out should be invalidated. On 22 October, after the second day of the voting, the political parties issued an accusatory statement, saying that “on 20 and 21 October, the biometric system for [capturing the data of] voters was, intentionally, not used in the majority of the polling centres, in order to pave the way for fraud. Therefore, the political parties of Afghanistan consider the election results from polling centres where voting was not conducted with the biometric method as invalid.” (See AAN’s previous reporting here).

Conclusion: IEC and ECC versus political parties

The IEC’s impromptu decision to authorise voting without biometric machines addressed the immediate confusion on election day, but ran contradictory to its pre-election day procedure that called for invalidation of ballots without biometric QR stickers. This pitted the ECC and IEC against each other. It also left genuine voters wondering why their votes, which they had cast without biometric data due to a fault that was not theirs, should be invalidated.

The IEC and ECC have now reconciled their differences and have clarified the procedure. However, the issue is far from solved. The invalidation process is still likely to affect both genuine and otherwise suspicious votes. And the ambiguities in the IEC’s procedure, the changing of the ECC’s position, and the lack of statistics on how many boxes and ballots may be affected have obscured the process of tabulating and tallying the results. This provides a chance for attacks by those parties and candidates who are unsatisfied with the procedure or their specific results.

The political parties’ continued insistence on the invalidation of all votes cast without biometric machines may again lead to an escalation between the IEC and the parties and could delay the announcement of the election results. This, in turn, would likely affect the preparations for the upcoming 20 April 2019 presidential poll.

(1) The annex on the voting and counting procedures regarding the use of biometric machines said that

The use of biometric machine is mandatory at each polling station. If the biometric machine in a polling station stops functioning for any reason or has not been delivered to a polling station due to problems, the contingency biometric machines or biometric machines of another polling station shall be used.

It also stipulated that “The ballot papers lacking biometric confirmation stickers will be considered as invalid and counted as invalid votes.” The IEC failed to clarify its procedures on what to do if the biometric machines were not working and deferred the decision for the election day.

(2) Other key findings of TEFA include:

• Approximately 91 per cent of the polling centres and stations opened in their pre-determined location.
• Almost 520 centres in 21 provinces (Kabul, Balkh, Samangan, Herat, Paktia, Maidan Wardak, Badghis, Bamyan, Zabul, Nuristan, Parwan, Logar, Ghor, Sar-e Pol, Jawzjan, Faryab, Nangarhar, Laghman, Urozgan, Baghlan, and Kunduz) did not open, mainly due to the absence of IEC workers, insecurity, explosions near the polling centres in provinces like Laghman, Baghlan, and unavailability of sensitive and insensitive electoral materials.
• Twelve per cent of the polling centres opened on time, at 7:00 am.
• Sixty-eight per cent of the polling centres in 33 provinces opened late.
• The security forces were present (as guards) in 98 per cent of the polling centres in 33 provinces.
• The number of IEC workers was insufficient in over 1,600 polling centres in 33 provinces.
• The voter lists were not displayed outside any of the polling stations.
• There were no voter lists in 21 per cent of the polling stations.
• People participated widely, but mismanagement discouraged them.
• Thirty-eight percent of polling stations lacked both sensitive and insensitive polling materials.
• Candidates’ posters were still present within 100 meters of 75 per cent of the polling centres in 33 provinces.
• Over 150 security incidents occurred, including rockets, explosions, conflict between Taleban and security forces, attacks at district centres, and shooting.
• There was a aack of proper coordination between IEC’s headquarters, provincial offices and workers on resolving the ongoing major issues in 17 provinces.
• Coordination between the IEC and the ECC in the polling centres and in handing over complaints forms to ECC delegates was weak.
• Voters’ fingers were not inked in 29 per cent of polling stations in 19 provinces.
• The overwhelming presence of candidates’ agents caused problems in some centres and stations.
• Illegal interventions made by IEC workers were observed in 35 per cent of the centres and station in 28 provinces.
• Problems were created for female voters, observers, and IEC workers due to the extension of the polling phase for another two hours on 20 October.
• A lack of electricity in 79 per cent of the polling centres created challenges in the ballot-counting phase.
• In ninety-three per cent of the polling stations votes were counted in the same station as where they were cast.
• TEFA’s observers were not allowed to observe the ballot-counting phase in 29 per cent of the polling stations.
• The extension of the polling phase for another day facilitated fraud and ballot stuffing in 16 provinces.

(3) The full text of the criteria reads:

1. The votes of ballot boxes from polling stations and centres where the voting had been conducted based on biometric registration in accordance with the relevant and available voter lists are valid, unless they are recognised as invalid due to other credible reasons and evidence in accordance with relevant legal documents.
2. The votes of ballot boxes in which the ballot papers have been cast based on biometric registration in absence of voter list in the polling station but based on manual list, if it matches the original list of the relevant centre, are valid, unless they are recognised as invalid based on credible reasons and documents in accordance with relevant legal documents.
3. The votes cast in the ballot boxes based on voter list and without biometric are recognised as invalid due to contradiction with paragraph four of vote counting section (polling and vote counting procedure of the 2018 Wolesi Jirga elections on use of biometric machines).
4. Votes of ballot boxes in which ballot papers have been cast without biometric barcode and without official list (with manual list) are totally invalidated.

The ECC also ruled that:

• Based on paragraph five of article 94 of the electoral law, if the principles of fair, secret and direct elections in one electoral constituency are compromised, the central complaints commission can declare the elections in that constituency as null. In this case, the IEC shall hold elections in the mentioned constituency within seven days. If based on points three and four of this decision and other legal instances which lead to invalidation of votes inside ballot boxes at the level of a constituency, the fairness, secrecy and other instances of enshrined in the above mentioned article of the electoral law are called into question, fresh elections shall be held in that constituency.
• According to provision of paragraph one of article 87 of the electoral law, in instances where the preliminary vote count or other legal instances are objected, the complaints commission orders full or partial recount of the ballots in the electoral constituency.
• If as a result of reviews it is substantiated based on authentic documents and evidence that employees and managers at any level, candidate or any other individual have committed negligence in their duties or committed electoral crime and damaged or harmed the national process of elections, they shall be introduced to the judicial agencies for prosecution in accordance with the law.

(4) Paragraph one of article 30 of the electoral law sets out the following authorities for the ECC and provincial ECC:

• Addressing objections against the list of candidates and voters, and requirements and qualifications of the candidates brought forward during the election.
• Addressing complaints arising from the electoral violations provided that the complaint is filed in accordance with the provisions of this law within the due period.
• Issuing advice, warning and order of corrective action to the person or organization that has committed the violation.
• Imposing cash fines, depending on the case, in accordance with the provisions of this law.
• Issuing order of recount of votes in specific polling centres prior to announcement of the election results.
• Invalidating the ballot papers not fulfilling the necessary requirements.

Paragraph two of the article says that both the central and provincial ECCs“can remove a candidate from the final list of candidates if proved based on credible documents that he/she was not eligible to nominate according to the provisions of this law.” 

(5) The joint statement also reiterated commitment of both commissions to smooth cooperation and the application of the relevant laws and procedures, saying:

• The electoral commissions are committed to holding joint meetings and taking necessary decisions to enact regulations and procedures related to the work of both commissions.
• The provincial offices of the electoral commissions will do the necessary cooperation to improve affairs in accordance with the law and the relevant procedures and in the presence of agents and observers.
• The electoral commissions will establish a joint committee to speed up the performance [presumably of the count and the complaint adjudication].
• If as a result of reviews it is substantiated, based on authentic documents and evidence, that [electoral] employees and managers at any level, candidates or any other participants in the elections have committed negligence in their duties, electoral crimes or have damaged or harmed the national process of elections, they shall be introduced to the judicial agencies for prosecution in accordance with the law.

(6) The political parties raised the following points:

• The political parties emphasise on separating the clean votes from the fraudulent votes in the central server by considering the biometric [QR sticker] as the criterion and implementing other criteria enshrined in the [IEC’s] annex to polling and vote counting procedures in order to safeguard the clean votes of the people and prevent systematic fraud. If the procedure for using biometric machines is not acted upon, political parties will use [all] necessary tools [after] consulting the people [to reject the results]. We call on the electoral commissions to carry out their legal responsibility in this regard.
• Providing the ground for political parties’ effective monitoring of the consolidation and counting of the results from the beginning to the end can contribute to the legitimacy of the elections. Therefore, no operation in the absence of the effective monitoring by political parties agents [of] the process of consolidation and tallying, review of complaints, quarantining of ballot boxes, recounting of votes and invalidating of the counted votes by the electoral commissions will be acceptable to the political parties. We reiterate that the votes of the [polling] centres where biometric [for capturing the data] of voters was not implemented are not acceptable to the parties and the Election Commission can hold fresh elections in those areas.
• The political parties once again insist on changing the current electoral system and call on the government and the Independent Election Commission to pave the way for the implementation of the MDR [Multidimensional Representation] system in the provincial and district council elections.
• The existing voter list is in no way credible. Therefore, political parties insist on fresh voter registration based on the biometric fingerprint of ten fingers [for] the presidential elections.
• Given that the presidential election date has neared, the Independent Election Commission should publish the electoral calendar for the presidential election as soon as possible and pave the way for transparent and fair elections as it had announced earlier.

By Special Arrangement with AAN. Original link.

Disclaimer: Views expressed on this blog are not necessarily endorsed or supported by the Center for Research and Security Studies, Islamabad.