How to check on Rigging Claims …

Photo: IEBC
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… after the closure of the polling stations. Part 3 of our Step-By-Step-Guide for the Media’s Election Reporting

Criminals may run away and not be caught in the act. But after their crime they leave traces that can be investigated. A post-mortem analysis of facts can help to confirm or counter claims that the elections were rigged. We have compiled some traces that may be discovered.

1. Rigging Claims around the Electronic Data

Claims that the outcome of the elections was rigged by forging the database can only be checked by IT experts with access to the IT system, or by comparing these data with the forms that were filled out by the presiding officers and returning officers and by doing a manual recalculation. If the results on the forms filled out in the polling stations do match with the electronic data, this means there was no error or manipulation of the results at the transmission level.
Important Note: The electronically transmitted data are only “provisional”. That is how Regulation 82 calls them (Kenya-Elections_General-Regulations-as-of2017).
The official result of the elections is based on the forms that have to be filled out after the elections, during counting and tallying.

2. Check the A-B-C Papers.

You can find samples of the forms that have to be filled out by IEBC officials in the Schedule of the General Elections Regulations (SCHEDULE2017-kenya-elections-regulations), though the actual layout of the forms is different. The names ending with letter A are to be filled out at the polling stations (see Regulation No 79 –Kenya-Elections_General-Regulations-as-of2017)

  • 34 A President
  • 35 A National Assembly
  • 36 A County Women Representative
  • 37 A Senator
  • 38 A Governor
  • 39 A Member of County Assembly

As for the Presidential election, the Returning Officers in the Constituency Tallying Centres should collate the results of the 34A forms and fill out 34 B, which then is the basis for the National Tallying Centre to fill out 34 C. But there seem have been plans to skip the Constituency level.

Similarly, the other B Forms are to be filled out at the Constituency Level (final level for MCAs, MPs), and the C Forms at the County level (Governor, Women Representative, Senator)

Have all Agents and / or Candidates present signed the forms? In the A Forms, they may indicate why they refused to sign. If a candidate claims rigging happened you may ask him if his agents were present and have expressed their dissent.

3. Do the Results on Paper match each other and with the electronic Results?

The IEBC has announced that with pictures taken from the A Forms the electronic results of the Presidential Elections will be verified. And that everybody can do the same on a portal where it uploads the filled-out forms. (forms.iebc.or.ke) But the IEBC has not communicated in detail the procedure for the other five electoral positions. For Form 34 A, the NGO Kenya Human Rights Commission has already pointed out inaccuracies of the electronic results versus the handwritten results. See their press release here.

4. Note on Forensic Research

The underlying idea of the Elections Regulations is that there are checks and balances present at the stations and that the agents present are from  different parties and will refuse to sign the results forms if they observed irregularities. After the closure of the stations all conflicts should be solved – or in the open.
This may be the reason why, unfortunately, there is no prescribed procedure in the Regulations for verifying the fairness of the election process after the closure of the polling stations. The (media) observers are allowed to be present during the whole process until the end of tallying. But there is no provision if they are entitled to see the documentation of the process thereafter. But we will try anyway to give some hints for post mortem investigations into rigging claims.

5. Were different Agents and Observers present?

Many analysts and observers agree, that rigging on a larger scale may only happen if the people present at a polling stations conspire to do so – be it voluntarily or through threats. So: Were there agents of the competing candidates present? Did they all sign the forms with names ending with “A”? Were agents denied entry? You may look at forms without signatures of competing agents in “stronghold” areas of certain parties or coalitions. Is there any pattern that can be seen or mathematically found out that voting results in these stations were different? For example via higher voter turnout?

6. More voters than registered voters?

This is the outcome of one of the dumbest ways of rigging – excessive ballot stuffing – because it has the opposite effect. Regulation provides that the results in such a polling station shall be declared invalid by the Returning Officer. But beware, this can be the desired result by those who start the rigging. Unfortunately, the Regulations do not provide for a procedure to save the votes of the duly voting population at that polling station.

7. Unexplainable high turnout?

If the percentage of registered voters who voted is much higher than the average, this may be an indicator of rigging by voting in the name of voters who had not turned up. The A and B Forms shall name the number of registered voters as well as the number of votes cast.

8. Do the written Records on Participation match the Electronic Records?

To verify this, you need the cooperation of the IEBC. The IEBC has said that the KIEMS gadgets would transmit the participation of registered voters in the polling station several times a day. These data can with a little math be held against the number of votes cast in the written records. Take into account that in most cases the number of votes cast per hour should be almost constant, if there always was a queue of people waiting to be let in.

9. Uncomplete Documentation?

The Presiding Officers have to fill out station diaries and forms like Form 32 with important data. The Returning Officers have to keep all the documents as well as the ballots, the printed voter register with the crossed-out names of the voters as well as the booklets of the ballots in a safe place for later scrutiny. (see Regulation 86 in Kenya-Elections_General-Regulations-as-of2017) If this is not the case and documentation is missing this may indicate that rigging has happened and is being covered up. Like many other wrongdoings in this list, for the IEBC staff it is an offence not to produce and keep the documents. See Election Offences Act Sec. 6, in this case para (l).

10. Does the number of cast ballots match the numbers of ballots given out?

Regrettably, the forms do not contain all the data to confirm this. It is in the polling station diary, that the presiding officer must fill out how many ballots were given out. – Regulation 73 (2) in Kenya-Elections_General-Regulations-as-of2017

11. Were many Voters not found in the Electronic Register?

If ballots were marked and filled into the boxes without the respective voters being present, this should reflect in the number of those cases that were registered in Form 32A. Because in such a polling-station there would be a higher percentage of voters that were crossed out in the printed register but not identified by fingerprints before (expected only in five percent of the cases) and not found in the electronic register with the biometric data code. The duty to fill Form 32A  is prescribed in Regulation No. 69 (1)(e)(ii) – Kenya-Elections_General-Regulations-as-of2017 . See the Schedule of the Regulations for the form – SCHEDULE2017-kenya-elections-regulations.

12. Voters List correctly handled?

Does the number of voter names that was crossed out in the voter register match the number of votes cast? This can only be verified with the cooperation of the IEBC that should present the documents for scrutiny.

13. Check on the Parallel Vote Tabulation of ELOG.

The Elections Observation Group (www.elog.or.ke) is conducting a “Parallel Vote Tabulation (PVT)” for the Presidential election as well as the Gubernatorial races in Narobi, Meru and Busia. It will announce the results shortly after the IEBC announces its official results. The outcome of the PVT will be a very significant indicator of the credibility of those four election results. The method of PVT is unfortunately not well described on the ELOG website. It is not to be confused with Parallel Vote Tallying. ELOG observers record the processes and results in a large sample of Polling Centres. Their tabulation will give a statistically significant scientifically valid assessment of the results of the IEBC.
Video about PVT as applied in Ghana

14. Disputes in the Courts

In the absence of written procedures for a post-mortem examination of the voting process, some cases will have to be decided by the courts. The constitution gives an aggrieved party seven days to contest the results of a presidential election in the Supreme Court. The court then has 14 days  to “hear and determine the petition” and its decision “shall be final”. Find out and tell us if the procedure for petitions is different for the other five electoral positions… Keep us posted.