6.3 Level playing field

MDM objected strongly to its exclusion and said it had submitted all of its documents. The party was new and overstretched, and it cut things very close; in four provinces it submitted only the minimum number of candidates, which meant that a single missing document meant that the whole list fell. There was also substantial debate about whether or not the confusingly drafted laws allowed parties time to bring missing documents. And there was inconsistency; a least two small parties that might be seen as taking votes away from the MDM, UDM and PLD, said they had been given an opportunity to replace missing documents and even to substitute candidates, while this was refused to other parties. Because of CNE secrecy, this cannot be checked.

On 16 September the CNE issued a ruling (Deliberação nº 65, dated 5 September) saying that it would not publish the names of rejected candidates nor the reason for rejection, although this material was given to parties. The group of budget support donors (G19) issued a statement saying that the failure to give this information ‘gives an impression of lack of transparency.’

MDM appealed to the Constitutional Council (CC), which rejected the appeal (acórdão nº9/cc/2009). But the CC ruling was much more detailed than CNE statements, and showed three areas of major disorganization by the CNE: • Boxes of submitted documents were given to pairs of CNE members to check. But there were no pre-agreed procedures or systems, and the pairs acted differently. Thus, some did contact parties and some did not. • The CC ruling is largely based on the CNE log book of transactions (mapa de controlo) which is secret and has never been shown to anyone outside except the CC, which accepted its accuracy. The CNE later admitted at least one major error in the mapa de controlo led it to put PDD on the ballot paper in Mocuba, Zambezia, even though PDD did not submit any candidates there. (By being on the ballot paper, it gained enough votes to have won a seat.) . • Receipts given to parties disagreed with the mapa de controlo given to the CC. For example, the MDM receipt says that it submitted 16 candidates and 6 supplementaries in Cabo Delgado, yet the document given to the CC says that MDM submitted 16 candidates plus 3 supplementaries (the minimum needed) and 3 were rejected as lacking documents – but it the receipt given to the MDM was correct, it still had enough (16 + 3). Similarly, an official document given to the MDM by the CNE (Notificação nº90) is significantly different from excerpt of the mapa de controlo for MDM in Cabo Delgado published by the CC (acórdão nº9) These issues were never resolved.

The sloppiness and incompetence of the CNE was compounded by total secrecy to create an atmosphere of distrust. The CNE was accused of acting in favour of Frelimo and Renamo (which had members on the CNE) against the MDM and there was clearly space for such action. Thus the exclusion of MDM in an obscure way from most provinces was highly controversial. The European Union, Commonwealth and EISA all said the election did not provide a ‘level playing field’ for all participants, largely because of the exclusion of MDM. The Electoral Observatory said the CNE had acted in a way that was ‘unjust’ and of doubtful legality. The whole process was murky, made worse by the total lack of transparency, and showed the CNE in the worst light.

Questions were also raised about the neutrality of the Constitutional Council, and in particular about its willingness to make a ruling (acórdão nº9/cc/2009) based on a secret document, the mapa de controlo, which was never made available to one of the parties in the case, the MDM. Natural justice would seem to require that all parties in a case have access to all documents.

Did it make a difference? It is possible to estimate the vote MDM would have received if it has stood in all provinces, because in the four provinces where it did stand, the MDM received a similar percentage of the vote in the parliamentary contest as its presidential candidate Daviz Simango received in the Presidential race. Daviz Simango stood across the country, so if we assume the

Post-Election Review of the General Elections of 2009 - Hanlon – 20 same proportion of the vote in the 9 constituencies in which MDM could not stand, we estimate (using the d’Hondt method) that MDM might have doubled its parliamentary representation, gaining 9 additional seats: 3 seats in Nampula, 2 seats in Zambezia, and 1 seat each in Cabo Delgado, Tete, Manica and province.

6.4 Party funding

The government allocated MT 50 million for the political parties, about US$ 1.85 million. The law sets some criteria and CNE does the distribution. Nineteen parties and coalitions were given funds. Frelimo gained the largest amount (MT 22 mn, $810,000) while the tiny PRDS which is standing only in Niassa received the least (MT 107,000, $4000).

The MT 50 million was divided into four equal parts by the National Election Commission. One quarter (MT 12.5 mn, $462,000) was divided equally among the three presidential candidates. The next quarter went to the two parties in parliament, divided according to the number of seats. But Renamo was in the previous parliament in a coalition with several small parties, so the share of MT 4.5 mn went to the Renamo Electoral Union, and it was never clear what portion went to the small parties in the coalition. The third quarter went to all parties standing for national assembly, in proportion to the number of seats they are contesting. The fourth quarter went to parting standing for provincial assembly, also in proportion to the number of seats being contested.

No justification for this distribution was ever given by the CNE nor why it was different from an earlier announcement (Deliberação nº61 of 16 August) that the money distributed in three equal parts, for presidential, parliamentary, and provincial assembly elections.

Figure 6.6 Funds for parties (in Meticais), as allocated by CNE

Ballot Parties/ Presidential Seats in Standing for Provincial Total paper Coalitions parliament seats in Assemblies position parliament 1 Frelimo 4 166 667 8 000 000 1 914 826 7 874 801 21 956 296 RUE 4 500 000 4 500 000 2 Renamo 4 166 667 1 914 826 3 638 357 9 719 852 3 PLD 1 554 641 1 554 641 4 MDM 4 166 667 520 833 617 384 5 504 884 5 PPD 137 868 137 868 6 ADACD 1 102 941 1 102 941 7 Ecologista 367 647 367 647 8 PAZS 689 338 689 338 9 MPD 122 549 122 549 10 PARENA 107 230 107 230 11 ALIMO 689 338 689 338 12 PT 107 230 107 230 13 UDM 153 166 153 166 14 PDD 949 755 169 458 1 119 212 15 PVM 1 531 563 1 531 563 16 UE 245 095 245 095 17 PANAOC 137 868 137 868 18 UM 145 527 145 527 19 PRDS 107 230 107 230 Total 12 500 000 12 500 000 12 500 000 12 500 000 12 500 000

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 21 7. Election campaign

The formal election campaign ran from 13 September through 25 October; there can be no campaigning on the two days before voting. Although campaigning can and does start earlier, the formal campaign period gives candidates and parties extra rights – to hold marches and rallies, post and distribute campaign material, and take time off work. Public halls can be used for meetings. State radio and TV gives air time to each party and presidential candidate, in a rota decided by lots drawn with the CNE. All state media are restricted to give balanced coverage to all parties and candidates. No special rules apply to private media, except that there can be no opinion polls published after that start of the campaign. (There are also no exit polls.)

In general, the campaign was calm and quiet, with few incidents of violence. Campaigning often consists of caravans of cars, motorcycles and bicycles driving through town hooting horns and playing music, sometimes ending with a rally, often in the local market. There are leaflets and posters. There were incidents of young people (often too young to vote) acting for one party to tear down posters of the opposition, interrupt marches, and disrupt rallies with shouting or loud music.

Frelimo as the party of government for 35 years was by far better organised, with an extensive network of party militants who are effective in campaigning and getting out the vote on polling day. In large part, this is simply good organisation, which in turn plays a key part in its regular victories. Frelimo also had substantially more money.

But there were complaints of Frelimo overstepping the mark and abusing its position as predominant party. The law specifically prohibits the use of state resources in the campaign and in past election there were repeated complaints of Frelimo using state cars. In this election, the daily Mozambique Political Process Bulletin, which had 120 correspondents throughout the country, ran lists of state cars being used by Frelimo, and this seemed to serve as a check, reducing the use of state cars. In some places, civil servants complained of pressure to attend Frelimo rallies, or of departmental meetings being used to promote the ruling party. And Frelimo created ‘shock groups’ of young men to disrupt opposition campaigning. The EU (p5) ‘witnessed occurrences of deliberate obstruction of opposition campaign events by Frelimo supporters. This, in some cases, led to abandoning of campaign activities altogether by some candidates and/or parties.’

But, except for a few incidents, the opposition was free to campaign, and received reasonable media coverage.

The EU summary (p19) of the campaign was: ‘Door-to-door campaigning was the most widely used way by all political parties to reach voters. Rallies of presidential candidates were peaceful and generally festive, with constructive campaign messages. Frelimo’s messages focused on past development successes and on the continuation of these efforts, and placed highlighted national unity. Renamo called for the separation of the state from the ruling party, for fostering the rule of law and for an end to alleged nepotism. MDM raised similar concerns and also insisted on supporting the youth, promising better education, housing and more employment. The campaign was monopolised by the presidential elections, with the legislative elections and the provincial assembly elections hardly receiving any public attention. The visibility of the parties not running in the presidential race was discreet to non-existent.’

The Commonwealth (p25) said ‘Frelimo’s campaign was dominant - marked by rallies, posters and billboards throughout towns, and lengthy motorcades, with a party-like atmosphere. The major themes of the Frelimo election manifesto were to strengthen national unity, to fight against poverty, to promote the culture of hard work, and to strengthen Mozambican sovereignty and international cooperation. Renamo promised to improve living standards, focusing on improvements in higher education to cultivate a larger number of professionals. The MDM formed a new fixture on the campaign trail, and in its campaign focused on the provision of quality education for the youth, improvement in energy resourcing and transport infrastructure.’

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 22 The Commonwealth (p40) added: ‘During the campaign, contestants enjoyed the requisite freedoms. There were some violent incidents reported, particularly at the start of the campaign, such as skirmishes between party supporters or attacks on some party offices. But overall the campaign was relatively calm.’

‘In the campaign rallies observed by the EU EOM [Election Observation Mission], observers estimated the participation of women at about 40 percent in the southern and central provinces and at about 60 percent in the northern part of the country. Nearly half of the observed campaign events featured female speakers and about one quarter of all polling stations visited by EU observers on election day were presided by women.’ (27)

The election received extensive coverage in the media. The law says that candidates should receive free airtime on state-owned radio and TV during the formal campaign period, as set by the CNE. Presidential, national assembly and provincial assembly candidates were given 15 minutes per week of TVM (TV-Moçambique) time. Presidential and national assembly candidates were entitled to 5 minutes per day on the national broadcast of Radio Moçambique (RM), while candidates for the provincial elections were entitled to 5 minutes per day on the provincial stations of RM. Not all parties were able to provide material to use their TV time.

The European Union observers had a special media monitoring project from 5 to 25 October which covered RM, 4 TV channels, 3 daily newspapers and 5 weekly newspapers. All are privately owned except RM, TVM, Noticias (daily) and Domingo (weekly). The EU (p5) reported: ‘The main media offered sufficient information on campaign activities, and the national radio and television made positive endeavours to cover campaigning by smaller parties. The state-owned media covered the campaign by political parties in a neutral tone and reasonably balanced manner, however Rádio Moçambique, Notícias and Domingo showed some quantitative imbalances in favour of FRELIMO’s presidential candidate.’ Indeed, the EU (pp23-25 and annex 1) found that RM and both public and private TV gave somewhat more coverage to Frelimo and Guebuza than to other parties and presidential candidates. In the print media, the state newspapers Noticais and Domingo and the private Dairio de Moçambique gave twice as much coverage to Frelimo and Guebuza than to either of the two main oppositions. By contrast, the private O Pais, Savana, Zambeze and Magazine Independente gave roughly equal space to the three main parties. The EU does not discuss reasons, but the opposition parties were less well organised in their media relations, often announcing press conferences and events at short notice, which definitely reduced coverage.

The Commonwealth (p28) commented that ‘the campaign period was characterised by a vibrant media involvement with diverse viewpoints on the issues raised prior to election and on the broader political landscape in Mozambique.’ The Electoral Observatory (p10) had high praise for the media.

But the EISA (p21) team ‘observed that there was no impartiality in media reporting, especially with regard to electoral campaigning. State-owned media coverage was heavily biased in favour of the ruling party.’

8. Polling, counting, and parallel counts

Polling day in Mozambique normally runs smoothly, and this happened again on 28 October. Polling station staff were well trained and conscientious and nearly all polling stations ran smoothly. They opened on time, usually to quite long queues, which diminished as the morning went on. Observers and journalists moved around freely, and, with only a few exceptions (see 9 below) party delegates were able to be present and watch the proceedings carefully.

Polling was ‘very well organised and peaceful’ said the EU. (p4) ‘Voting commenced in a vast majority of polling stations according to schedule and overall, was conducted in a calm and organised manner’, the EU continued. (p30) ‘Polling staff was committed and acted professionally in the majority of the polling stations visited. Efficient processing of voters, use of controls and

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 23 safeguards by polling staff and the secrecy of the vote were also assessed as very good or good in over 95 percent of polling stations visited. There were several cases of presiding officers of polling stations throughout the country refusing to accept complaints from political party representatives.’

The Commonwealth (p39) said that ‘Mozambique’s 4th national multi-party elections and were conducted in a largely peaceful atmosphere. Voting and counting in the polling stations on election day were generally well administered.’ It added (p33): ‘Overall, observers reported very positively on the conduct of voting, commenting that in the vast majority of stations the process was carefully and properly managed. … Observers reported that voters were free to express their will through a secret ballot.’

Electoral Commissions Forum of SADC Countries (p18) reported that ‘the Mission is of the view that a conducive environment existed for the people of Mozambique to exercise the right to vote.’

‘The International Observer Mission found that, in general, the election day proceedings on October 28th were conducted well, that polling station staff, in general, correctly followed the guidance in the manual, that the atmosphere on election day was calm and that the electoral staff were professional, committed and courteous.’ The International Observer Mission consisted of 67 international observers drawn from diplomatic missions and co-operation agencies in the Development Partners’ Group (G19 budget support group).

Most polling stations closed on time at 6 pm, although a few had to remain open to handle voters still in the queue at 6 pm. Counting was largely carried out correctly, in the presence of observers, journalists and party delegates, and in most polling stations continued until after midnight. Results were posted as required, and copies given to party delegates.

This allows parallel counts. Three rapid counts were conducted, and all three produced results close to each other and to the final result for the presidential election. Radio Mozambique read out results all day on Thursday 29 October and had by far the most rapid public count. They were not far from the final results, giving more to Guebuza and less to the other two candidates – perhaps reflecting an urban bias. But they were correct on the Guebuza landslide and that Dhlakama would be second and Simango third. The Electoral Observatory and EISA (Electoral Institute for the Sustainability of Democracy in Africa) did a statistically accurate sample count. By mid-day Thursday, they were extremely close to the final result. Finally, STAE and the election authorities themselves did a series of rapid provisional counts for the press. The Mozambique Political Process Bulletin (2009 Elections number 32) published a comparison of the quick counts with the final, giving an early and a later version for STAE and the Electoral Observatory. This is table 8.1 below. What is striking is that all three gave very similar results and thus the public knew quite quickly the outcome of the election, even thought the official results were not released until much later.

Table 8.1 Comparing rapid counts with actual result for Presidential election

Date Sample Simango Guebuza Dhlakama Turnout size RM 29.10 at 1700 14% 6% 83% 10% 42%*/46% STAE 29.10 at 2000 19% 8% 77% 15% 42%*/46% STAE 1.11 89% 9% 76% 15% 39%*/43% ElObs 29.10 at 1200 5% 10% 75% 15% 43% ElObs 4.11 7% 8% 74% 17% 44% Actual 9% 75% 16% 45%

* Turnout for RM and STAE was for valid votes only; there were 10% invalid votes (nulos or spoiled, 4%, and blank, 6%), and the second figure is an extrapolation of their estimated turnout to take account of the invalid votes. The Electoral Observatory and the actual results includes invalid votes.

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 24 The CNE reported that each party was allowed to designate 25,398 delegates (2 for each polling station) and that Frelimo designated 24,862 (98% of polling stations), Renamo 20,797 (82%), and MDM 16,607 (65%). The CNE also registered 3,678 national observers, 502 international observers, 1,120 national journalists, and 65 foreign journalists. The European Union (EU) was the largest international observer group, with 131 observers including 24 long term observers, and had a presence from 22 September to 21 November. The Electoral Observatory, a grouping of eight Mozambican NGOs, fielded 1662 national observers.

The count is carried out in the polling station, and the EU observers (p31) reported that ‘counting was mostly conducted in a calm and orderly manner and was assessed as good or very good in 70 percent of the polling stations visited.’

9. Incidents, stuffed boxes and damaged ballots

Ballot box stuffing and improper invalidation of opposition votes became significant in the 2004 election, and was the subject of a paper by Joseph Hanlon and Sean Fox, ‘Identifying Fraud in Democratic Elections: a case study of the 2004 presidential election in Mozambique’, published by the London School of Economics.

9.1 Problems recognised

The problem was worse in the 2009 elections, and was recognised by the National Elections Commission after the 2008 local elections. In its announcement of the final results, it pointed to the invalidation of votes by adding a mark for a second candidate, sometimes ‘using ink from the pad meant for those who vote with a fingerprint, or with a pen from the voting booth, to harm some candidates. Although the number of votes in this situation does not alter the final result of the election, the National Elections Commission vehemently repudiates this practice, which is a violation of the electoral law.’ Nothing was said officially about ballot box stuffing, however, as noted below, the CNE, without saying it had done so and without explanation, rejected over 100,000 votes in places where there were accusations of ballot box stuffing.

Taken together, the data suggests that up to 6% of polling stations had some level of staff misconduct. Although it should be possible to identify the culprits in at least some cases, by one year after the elections no prosecutions had been brought, and the CNE had largely destroyed the evidence. Observer groups and the Constitutional Council have expressed fears that the lack of prosecutions creates a culture of impunity, with polling station staff feeling safe from punishment.

The check on such violations is supposed to be the presence of party delegates and observers, but in problem areas observers and delegates tend to be improperly excluded from the counting process. Three areas have historically been particularly problematic. and particularly Changara district, as well as western , for ballot box stuffing in 1999 and 2004, and Ilha de Moçambique for general disruption in local elections in 2008.

Again in 2009, Ilha de Moçambique proved an exception to the general rule of smooth and peaceful voting. ‘EU observers reported cases of voter intimidation of voters, biased behaviour by a domestic observer group (FOMOE) and deliberate cases of violent disruption of the process.’ (p30) The International Observer Mission of the Development Partners Group ‘observed specific problems with the electoral process in Ilha de Moçambique, some of which may have been serious.’

The Forum Moçambicano da Observação Eleitoral (FOMOE) is a Frelimo-aligned observer group. There were 1435 national observers registered in (40% of all national observers) and most of those were FOMOE. There were complaints in Ilha de Moçambique and elsewhere in the province of FOMOE ‘observers’ taking an active role in the voting process, such as giving instructions to polling station presidents and being involved is crowd control and choosing who should vote.

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 25

‘Ilha de Moçambique was arguably the district showing the most blatant patterns of violations across the board. There, EU observers detected during counting and tabulation several clear signs of ballot box stuffing and large discrepancies between the number of votes cast for each of three races in the same polling stations. They also reported cases of polling station results clearly modified between counting and the next day display outside the polling station.’ (p32)

‘EU observers directly reported several cases of political party delegates being ordered to leave the polling station before the beginning of counting. As a consequence, many of these delegates could not file a complaint on irregularities. They also were unable to collect their result forms from polling staff. In addition, EU observers witnessed multiple cases of polling station presidents refusing to register complaints about counting and tabulation from political party representatives, or as in Nampula province, directing them to the wrong authority to file their complaint.’ (p31) The Electoral Observatory (p8) also reported observing cases where polling station presidents refused to accept formal protests.

The Electoral Observatory (p13) noted a ‘climate of tension and distrust which characterised the relationship between polling station staff and some party delegates, which turn polling stations into places of dispute and not of overseeing the electoral process.’ In some places observers were insulted and not allowed to carry out their work.

The Commonwealth (p37) reported problems in Changara district, Tete, which has been a centre of ballot box stuffing in past elections. ‘At Alpende Mitsanha in the district of Changara the team was initially refused entry to the polling station. The accreditation signed by the National CNE Chairman was apparently insufficient for the Poling Station President who wanted to see clearance from an election official in Changara. We were eventually granted access but the atmosphere was uncomfortable. The team were later informed that opposition parties had failed to gain access to the stations in Changara as their accreditation had not come through in time.’ The Electoral Observatory (p8) reported that its observer in Massanga, Changara, was thrown out of a polling station.

9.2 Ballot box stuffing

A year after the election, detailed polling-station-by-polling-station results had not yet been published, but it was possible to use data from the sample count conducted by the Electoral Observatory (Observatório Eleitoral) and EISA to make estimates. This was a formal Parallel Vote Tabulation (PVT) based on a random sample of 8% of polling stations, a total of 967 polling stations. It was also possible to view data from individual polling stations during the count, so media and observers paid special attention to traditional problem areas in Tete and Gaza, and Ilha de Moçambique.

Ballot box stuffing involves the insertion of extra votes for one candidate, nearly always the Frelimo Presidential candidate, Armando Guebuza. Votes from polling stations are rejected if the turnout is much over 100%, so this imposes a limit on what can be done, but in many cases all or nearly all ballots not used during the voting day are later given to Guebuza. Because blank and valid votes are left at district level and later destroyed, it is not necessary to actually put physical ballots in the box, but simply to include extra votes on the results sheets.

For Figure 9.1 we have grouped the polling stations into bands 1% wide according to turnout. Thus the two highest bars are 39 polling stations with a 39% turnout and 34 polling stations with a 40% turnout. But two things look odd. First, at the left of the chart, there are a small group of polling stations with a turnout of less than 15%. That suggests something was wrong – the polling station opened late, or was hard to find, or there was a problem with the register book. This affected 1% of polling stations in the sample.

And at the right of the chart there are a group of polling stations with a turnout of over 95%. We find that highly suspicious, because normally some people on the register will have died or be too

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 26 ill to vote or be away from the area. And turnouts of over 100% are even more suspicious. There were 21 polling stations in the sample with a turnout of 100% or more, and 15 with between 95% and 99%. We think there is a good chance that in these 36 polling stations (3% of the total), there was ballot box stuffing. A closer looks shows that of the 36, 21 were in Tete and 6 were in Gaza, areas where there has historically been ballot box stuffing.

Without full polling station results, it is impossible to do a precise calculation. But we can make an estimate. The average polling station had a register of 777 voters. If 3% of all polling stations had ballot box stuffing which raised their ‘turnout’ from the average of 45% to, say, 95%, this would be 148,000 extra votes.

It should have been possible to identify polling stations with likely ballot box stuffing and check the ballot papers as well as complaints by observers and party delegates about not being allowed to be present. But this has not been done and ballot papers have now been destroyed, so again there will be no prosecutions for ballot box stuffing.

Figure 9.1

Turnout at PVT polling stations, 1% bands

45

40

35

30

25 !"#$%&'()'*(++,-.'/012(-/' 20

15

10

5

0 Afluência 10% 20% 30% 40% 50% 60% 70% 81% 91% 101% Turnout

9.3 Spoiling opposition ballot papers

A ballot paper is not valid if it has marks for more than one candidate. It is possible to vote with a fingerprint and an ink pad is provided in the voting booth to allow this. Many voters cannot write and vote with a finger print. In past Presidential elections, 2.8% or 2.9% of ballot papers were invalid; a few voters smear the ink over more than one candidate, or vote for everyone, or vote for one candidate with a pen and another with a fingerprint, or write a word like ‘thief’ (which invalidates the ballot). From the 2004 election there were complaints of polling station staff using

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 27 this as a framework to invalidate ballot papers, by putting a second mark on ballots for the opposition during the count. This was sometimes done covertly, even with party delegates present, and usually not spotted by sleepy opposition delegates in dark rooms with only one lamp and no electricity.

In 2009, however, delegates were more vigilant, and in one case actually videoed the process, at polling station EPC Esturro in Beira. The pictures below come from the MDM video. The first photo shows a typical improperly spoiled ballot paper, with an X from MDM Presidential Candidate Daviz Simango, and an ink mark next to another candidate. The long and slow counting procedure requires that the president of the polling station shows each ballot paper and says, for example, ‘valid vote for Y’. A member of the polling station staff then puts a tick mark on the schoolroom blackboard. The second photo, according to MDM, shows the blackboard at the end of the count, with 23 invalid votes (‘nulos’); another photo, not reproduced here, shows a large majority for Simango. But the results sheet (‘edital’) shows 124 nulos and a majority for Guebuza. MDM claims 101 ballot papers for Simango were falsely invalidated, and124 nulos is an extremely high 32% of the total vote.

All invalid ballot papers were sent to the CNE for reconsideration, and the process of reconsideration is open to the press and observers. As the CNE members and others went through the nulos, it was often quite obvious that a whole series of votes for Dhlakama or Simango had been improperly invalidated, with similar ink marks in the same place on the ballot paper. In a few cases, there were clear fingerprints, which could have been used to identify the culprits.

The system as used by the CNE ensured that evidence is destroyed. First, CNE members and others checking the invalid ballot papers made no attempt to check for fraudulent actions, but only looked to see if the ballot was valid or invalid. Second, invalid votes arrive at the CNE headquarters in plastic bags, with a separate plastic bag for each polling station, but they are immediately opened and all the invalid ballot papers from an entire district put together. Thus we know that there were clear, identifiable fingerprints from Alto Molocue, but it was no longer possible to know from which polling station.

There are two ways to estimate the seriousness of the problem. The first is to compare with 2004 (when there already was a problem). For both parliamentary elections of 2004 and 2009, 3.3% of ballot were invalid, after reconsideration by the CNE. In 2004 only 2.9% of presidential ballot papers were invalid, compared to 4.0% in 2009. That suggests 1.1%, or 48,000 ballot papers, may have been improperly invalidated.

Another way to look at the problem is to consider the PVT, which records the total Presidential vote in its polling stations. Figure 9.2, below, looks at invalid votes (nulos). Here we have ranked the 967 polling stations with those on the left having the lowest percentage of invalid votes and those

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 28 on the right having the highest percentage. For the most part, the chart shows what one might expect – a range of invalid votes starting from very few and rising slowly to about 8%. But then it suddenly jumps. What the high values on the right of the chart show is that there are a few polling stations with very high numbers of invalid votes. It is highly unlikely that such a large number of voters did not know how to vote or spoiled their ballot paper. There are 6 polling stations in the sample with over 30% invalid, 13 between 20% and 30%, and 12 between 15% and 20%. We consider the 29 polling stations (3% of the total) to be highly suspect. There are another 30 polling stations with between 10% and 15% invalid, which are questionable. Of the 29 polling stations with more than 15% invalid votes, 6 are in Angoche, Nampula province, where there were complaints about putting extra ink marks on ballot papers for Renamo in past elections. The other big group is 7 in Sofala. Two of the polling stations with more than 20% invalid votes are in Tete which is already suspect for having very high turnouts; 4 others in Tete also have high numbers of invalid votes.

Figure 9.2 PVT Polling stations ranked by % of invalid votes

40%

35%

30%

25%

20% % of invalid votes invalid %of 15%

10%

5%

0%

Polling stations ranked by nulos

10. Tabulation, publication and validation of results

Two tabulation processes take place in parallel. Each polling station sends one copy of the results sheet to the district election commission, which compiles a district result, which is sent to the provincial election to compile a provincial result, which is then sent to the CNE. It also sends a copy to the CNE, which does its own tabulation.

The Commonwealth (p38) noted that ‘the tabulation process was not as orderly as the voting and polling station count. … polling officials were exhausted at this stage but it was felt that in many instances the premises provided for the receipt and administering of results was too small and that officials were sometimes simply dumping materials and paperwork at the District.’

EU (p31) observers ‘found that tabulation procedures were not always clear and fully understood by the elections officials, both at district and at provincial level. … Tabulation at district and provincial levels was generally carried out without any political party representative in attendance. In several cases observed by the EU EOM [Election Observation Mission], party delegates were

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 29 not allowed inside the tabulation centres. Presidents of district electoral commissions (CDE) and of provincial electoral commissions (CPE) referred to a variety of interpretations as to whether political party representatives and domestic and international observers were or not allowed to attend tabulation. … Observers – including these of the EU EOM despite the unambiguous provisions of the 2009 Memorandum of Understanding with CNE – were kept out of the tabulation in several districts and, at provincial level, in the provinces of Niassa, Cabo Delgado and Nampula.’

The district elections commissions add up the results from all the polling stations in the district, announce them locally, and forward them to the province, which combines and announces the results, and sends them to the CNE.

A national level, the CNE reconsiders all invalid votes – in 2009 the CNE says it reconsidered 372 633 ballot papers (199 260 Presidential, of which 23,707 were considered valid, 158 396 parliament, and 14 977 provincial assembly). The reconsideration of invalid votes was open to press and observers. Requalification can make a difference in a close race. It this case, it shifted one parliament seat for from Frelimo to Renamo.

STAE’s computer centre in Maputo does its own tabulation of results based on the results sheets sent by each polling station. The CNE then considers these results and, meeting entirely in secret, it produces a final tally which it released to the press on 11 November. It contained a number of errors, which were slowly corrected over subsequent days. The results are published as Deliberação nº75/2009.

The CNE results are necessarily different from those announced by the provincial elections commission (CPE) because they include those voters previously considered invalid but now accepted. However, unexpectedly, there were other significant differences between provincially announced and nationally announced. In its statement, the CNE does not give any list of changes it has made to the results, and therefore gives no explanations – and has not done so since.

It is only possible to compare provincial and national results, so a detailed list of changes made by the CNE in secret cannot be compiled. But differences in Niassa and Tete stand out, because they indicate large number of ballots have been thrown out.

In Niassa, the CNE total has 9916 fewer votes for President than the CPE total; Guebuza lost 8344 votes. There are 15,839 fewer votes for parliament, compared to the CPE total; of these 11,130 were for Frelimo, which shifted one parliament seat from Frelimo to Renamo. This underlines the transparency issue – acting in secret, with no statement and no explanation, the CNE changed the ‘official’ result announced by the CPE, and shifted one parliamentary seat.

In Tete the action was more dramatic; the CNE result has 85,693 fewer votes for President than the CPE result with Guebuza losing 74,555 votes, and turnout was reduced from 66% to 55%. Again, no details have been given, but AIM checked the computer data base and could find only 71 polling stations for Changara, Tete, which suggests that 51 polling stations in Changara – a district notorious for ballot box stuffing – were excluded, almost surely because of 100% turnouts and obvious ballot box stuffing.

Problems caused by lack of transparency are compounded by strange aspects of the data. For example, the CNE added 32,979 Presidential votes in six provinces, when the number of invalid votes accepted and added in from the entire country was only 23,707. This means the CNE found an extra 10,000 votes in six provinces, but did not say so, or say where they came from.

The CNE submits its results to the Constitutional Council (CC) for validation. The CC approved the results on 27 December (acordão nº32/cc/2009). The CC noted that the CNE excluded 1063 polling station results sheets, which was not mentioned by the CNE in its report of the results.

But the CC strongly criticised illegal actions by the CNE which worked against the interests of some political parties. In common with most observers, the CC distinguished between CNE and

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 30 STAE (Secretariado Técnico da Administração Eleitoral, Technical Secretariat for Electoral Administration), singling out STAE for praise for the way it organised the elections.

Again, the CC called for more transparency, saying that the CNE and STAE must do more to immediately publicise decisions and notify those directly affected. There must be ‘more publicity for their actions’ and ‘better communications and dialogue with political parties’. This is necessary to ‘increase the level of confidence and credibility in electoral administration.’

The CC harshly criticised the CNE for its ‘administrative failures’ and sometimes blatant disregard for the law, particularly about publishing information. The election calendar approved by the CNE was supposed to sort out all the contradictions in the laws, but instead it, too, contained ‘imprecisions and anomalies’ and was in some places ‘incoherent’. Deadlines were not set out clearly and some parts of the calendar improperly overlapped, for example the registration of parties and delivery of nomination papers. The period for presenting candidatures ‘was not in conformity with the law’ and failed to allow time for appeal. The CNE also violated the law by not publishing its own decisions. Although the CNE had to take account of contradictions in the law, some of its decisions ‘were not plausible in light of the law’. By law, the CNE was supposed to post candidates lists three times - when lists are first submitted, when lists are verified, and when all protests have been heard. But it only did so once, totally ignoring the rights of parties to check for omissions and make protests. ‘The situation was aggravated by the fact that the CNE did not notify proponents of its decisions.’

The CC pointed to significant criminal actions by presidential candidates who presented fake signatures in the 10,0000 on applications to stand, and notaries who validated the signatures.

The CC notes that 1063 polling station results sheets (editais) were excluded, nearly 3% of the total. Some of these simply had errors, such as the wrong polling station number. But others were ‘intentionally corrupted’, particularly by increasing the number of votes. The CC noted pointedly that parallel counts carried out the observers had cited this as ballot box stuffing. The CC also points to the ‘high number of ballot papers that had been correctly filled in by voters but which later were adulterated by third parties to make them invalid.’ These are criminal actions, it noted. The CC said that although it does not have investigatory capacity, it did take into account more than simply the documents submitted to it by the CNE, and used reports from domestic and international observers and the press. It concluded that that the ‘various irregularities registered and censured in this ruling did not influence the results of the elections’, which were therefore approved.

The CC was also highly critical of the ‘multiplicity of electoral laws’ which are contradictory and hard to interpret, and called for the creation of a simplified and rationalised “Election Code”.

11. Complaints and prosecutions

The CNE’s final declaration of results says that no objections or protests were filed. This was not true, as observers saw protests being filed. EU observers saw 14 protests being filed on election day. (p29) The EU (p28) also noted that ‘there were several cases when presiding officers of polling stations refused to accept complaints from political parties’ representatives.’

The law and CNE regulations set out a system where each complaint must be considered at the lowest level – usually the polling station – and then appealed to higher levels – district, province and national. The first problem is that if a polling station refuses to accept a complaint, it may be illegal, but there can be no higher appeal. And, therefore, there is no way to protest about the refusal to accept a protest. Refusals to accept a protest have two roots, one is party political, but the other is that some polling station presidents argue that by accepting a protest they are giving credibility to it, when they have already ruled against the protestor on the issue in question. Thus very few protests are actually lodged at polling stations. The second problem is that staff at district

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 31 and provincial level are overstretched and tend to ignore formal protests; without a ruling, there is no way to appeal to higher level. So no protests or objections reach the CNE.

The EU noted (p4) that ‘as in 2004, irregularities in counting, tabulation and aggregation were observed. They were too limited in scope to significantly affect the results. The absence of fundamental measures of transparency however did not enable a precise statistical assessment of the distortions of local results caused by these irregularities.’ It continued (p6): ‘there has been no precedent of prosecution in a case of electoral fraud that may serve as a deterrent in future elections. In addition, political parties and the general public have no confidence in the authorities’ willingness to punish wrongdoers in cases of electoral fraud.’ The EU noted particular problems in Niassa, Tete, Gaza and Ilha de Moçambique in Nampula.

A year after the elections, no actions have been taken against Presidential candidates who submitted fake names, and notaries who certified them. There has been no attempt to prosecute polling station staff who stuffed ballot boxes or invalidated ballots, even though some names are known.

12. Conclusions and final comments

The victory of Armando Guebuza and Frelimo in the 28 October 2009 elections reflected the intent of the voters. The EU (p7) concluded that ‘Frelimo’s overwhelming victory suggests that the results reflect the choice of a vast majority of Mozambican voters.’ The Electoral Observatory (p14) ‘gives its vote of confidence to the electoral results’, and recognises that correcting irregularities would not change the overall result

But the victory was tainted by misconduct, sloppiness, and secrecy. The poor performance of the National Elections Commission (CNE) was compounded by a lack of transparency, which gave the widespread impression of a failure to create a level playing field for all contenders. There are suggestions that the two main opposition parties, Renamo and MDM, were improperly deprived of some seats in parliament (although not enough to change Frelimo’s large majority).

The EU (p4) noted that ‘the broader electoral process was weakened by the insufficient measures of transparency shown by the country’s electoral authorities, by an unlevel playing field during the electoral campaign and by limitations with regard to voter choice at local level.’ The Electoral Observatory (p12) ‘deplores the actions of the electoral bodies’ whose actions tended ‘to prejudice and not favor the citizen.’

For the Commonwealth (p39), ‘The election met a number of key democratic benchmarks, providing for freedom of association, expression, assembly and movement, as well as equal and universal suffrage and the right to vote. However, disputes over the nomination of party lists for the National and Provincial Assembly elections and a lack of transparency in some key aspects of the work of the National Election Commission (CNE) were of concern.’ ‘In addition to the concerns regarding the CNE‟s lack of transparency in the candidate nomination process, it is felt that a significant amount of key electoral information was not published in good time or at all. … In some instances the CNE responded to media requests for such information by declaring that it had posted documents on the premises of CNE in Maputo, yet this cannot realistically qualify as proper publication for information so vital for the transparency and accountability of the process.’ (p20)

Frelimo was the party of independence in 1975 and has been in government since then, first as a one-party state, and not the victor in four multi-party elections. It has developed an effective political party machine with a good grassroots network. By contrast, the opposition has been weak and poorly organised; in particular, opposition parties have failed to create the structures necessary to build support and then get out the vote on polling day. Better organisation cannot be considered an unfair advantage; of course, with its long history and its time in government, Frelimo has had more time and space to build its party machine. But 15 years since the first multi-party election has provided ample time and space for opposition parties to build electoral machines, and

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 32 this has largely not happened. Frelimo’s victory in 2009 reflects both genuine support, but also good party organisation and a continued weak opposition.

Fairness is not the same as equality. We cannot demand that parties be equal -- parties will be large and small, rich and poor, competent and incompetent. We demand only that they be treated equally and have equal rights. Carl Dundas, then of the Commonwealth Secretariat in London, in his 1994 booklet ‘Dimensions of Free and Fair Elections’ noted that ‘no experienced elections official would subscribe to the view that an absolute equality can be achieved between contending parties. Some will be better organised and some will have larger numbers of supporters to mobilise.’ Dundas went on to say: ‘It is well recognised and widely accepted that the party forming the government can enjoy considerable advantages over opposition parties.’ For example, in the run-up to the election, ministers can generate publicity by making official announcements. The governing party also normally has more access to resources and may be able to fund a more expensive campaign than the opposition. ‘The true test’ of fairness in the campaign, according to Dundas, is whether opposition parties have a fair opportunity to put their programmes to the electorate through rallies, media announcements, marches, etc. and that all parties have access to the National Election Commission and that it deals openly and on equal terms with each party.

The CNE clearly failed the Dundas test – it was not open and appears not to have dealt equally with each party. In a broad sense, the election campaign did meet the Dundas test: opposition parties did have the opportunity to make the case and be heard.

But a question remains if Frelimo, as predominant party, overstepped the mark and misused its dominant position. It could be argued that it did cross the line in several ways: • Gaining dominance of the CNE through ‘civil society’ nominations, and then approving high levels of secrecy within the CNE which, at least, created a suspicion that Frelimo was using its predominance unfairly. • Late changes to the law which made it more difficult for opposition candidates to register and gave an unfair advantage to Frelimo’s better organisation; maintenance of a system in the law which makes complaints about polling violations effectively impossible to make. • Use of state resources, notably cars, during the campaign, and putting unfair pressure on civil servants to attend meetings. • Failure to discipline misconduct by electoral staff or prosecute violations of electoral law, most of which benefitted Frelimo. This must be placed in context. The opposition in parliament did not see and understand, and thus did not effectively contest, aspects of the electoral law which put the opposition at a disadvantage. The press was free and reported misconduct, including use of state cars in the campaigns, ballot box stuffing, etc. And the ruling party does not formally organise misconduct; it does, however, create a climate in which misconduct occurs. Thus in constantly stressing to militants that victory is ‘essential’, and in never disciplining (and sometimes promoting) those who use state cars in the campaign or spoil opposition ballot papers in the polling station, creates a climate in which many party militants feel that it is correct and appropriate to bend rules and breaks laws. What is created, then, is a climate of unfairness and a tilted playing field which is intangible but nonetheless real.

It is not the role of the international community nor the Mozambican government to prop up a weak opposition, nor to restrict a better organised and popular predominant party. But it is important that the ruling party not take unfair advantage of its position; indeed, it should use its position to ensure a level playing field. For future elections, three key changes are necessary to build on existing strong institutions in Mozambique: • Civil society, the international community, and the media should highlight a small numbers of aspects of the law which work against the opposition, and campaign on those issues. This would include excessively bureaucratic requirements for candidate to register and systems which make complaints impossible. • Election law violations, from the use of state cars to spoiling ballot papers, should be prosecuted. The government cannot interfere with the courts, but it can prioritise certain kinds of criminal investigations. And government and the CNE can give higher priority to collecting and saving evidence which would support prosecutions.

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 33 • Transparency is the only real check on electoral impropriety. Mozambique has an active and effective media and civil society, which can be a more effective check on the predominant party than a weak opposition. But to work, the media and civil society need information. The CNE necessarily makes choices and interpretations of the law – that is why is it appointed. Transparency provides proof of the integrity of the CNE and its members, by making all of their actions open to scrutiny. It is outrageous and improper that a key document, such as the mapa de controlo, should be presented as evidence to the highest court in the land, but remain secret. How can hundreds of polling stations be excluded from the count, but with the voters never being told that the exclusion occurred, or why? Except, perhaps, for internal personnel issues, it is hard to see why any aspect of electoral decision-making should remain confidential or secret. Fairness and a level playing field can only be ensured by making all documents public and making meetings of the CNE open to press and public. Secrecy encourages suspicion; transparency encourages trust. The Commonwealth (p23) recommends that ‘The CNE needs to act in a more transparent manner, and improve its approach to disseminating of public information. The CNE is a public institution, serving the interests of the public on a vital activity. Information pertaining to its operations and decisions must be fully transparent to maintain public and political confidence.’

Suspicion and misconduct clouded the legitimate victory of Frelimo and President Armando Guebuza. The conduct of the campaign and the election was very good, but the management of the election was not good enough.

References

Observer reports

Report of the Commonwealth Observer Group, Mozambique National and Provincial Elections, 28 October 2009, London: Commonwealth Secretariat.

European Union Election Observation Mission to Mozambique, Final Report on the Presidential, Legislative and Provincial Assembly Elections – 2009

Electoral Commissions Forum of SADC Countries (ECF-SADC), Observer Mission Report - Presidential, Parliamentary and Provincial Elections in Mozambique held on the 28th October 2009, Gaberone, Botswana: ECF

EISA Election Observer Mission Report - The Mozambique Presidential, Parliamentary And Provincial Elections Of 28 October 2009, Auckland Park, South Africa: EISA – Electoral Institute for the Sustainability of Democracy in Africa.

Declaração do Observatório Eleitoral Referente à Eleição do Presidente da República, dos Deputados da Assembleia da República e dos Membros das Assembleias Provinciais. Maputo: Observatório Eleitoral. {Fazem parte do Observatório Eleitoral as seguintes organizações moçambicanas: a Associação Moçambicana para o Desenvolvimento da Democracia (AMODE), o Centro de Estudos de Democracia e Desenvolvimento (CEDE), o Conselho Cristão de Moçambique (CCM), o Conselho Islâmico de Moçambique (CISLAMO), a Conferência Episcopal de Moçambique (Igreja Católica), o Instituto de Educação Cívica (FECIV), a Liga dos Direitos Humanos (LDH) e a Organização para Resolução de Conflitos (OREC).}

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 34 Other documents

Joseph Hanlon and Sean Fox, ‘Identifying Fraud in Democratic Elections: a case study of the 2004 presidential election in Mozambique’, London: London School of Economics, Crisis States Research Centre, December 2006 http://www.crisisstates.com/download/wp/WPseries2/wp8.2.pdf

Carl Dundas, 1994, ‘Dimensions of Free and Fair Elections’, London: Commonwealth Secretariat

Mozambique Political Process Bulletin, published in Maputo by CIP and AWEPA.

Comissão Nacional de Eleições, ‘Acta do Apuramento Geral das Eleições Gerais – Presidenciais, Legislativas e das Assembleias Provinciais, de 28 de Outubro de 2009’, published in Notícias, 14 November 2009. (Deliberação nº75/2009. Report of final results.)

Joseph Hanlon 7 Ormonde Mansions 100a Southampton Row London WC1B 4BJ, England [email protected] 31 January 2011

Post-Election Review of the Mozambique General Elections of 2009 - Hanlon – 35