PORT AU PRINCE, Haiti – Upon publication of the final results of the second round of presidential and legislative elections on 20 April 2011 in Haiti, preliminary results in 17 constituencies and one department were reversed following the decisions taken by the National Electoral Complaints and Challenges Bureau (BCEN).
Among these 18 decisions, 17 relate to the post of deputy in the following constituencies: L’Estère, La Chapelle, Petite Rivière de l’Artibonite, Maïssade, Belladère, Abricot/Bonbon, Petite Rivière de Nippes, Vallières/Carice/Mombin Crochu, La Tortue, Mole Saint-Nicolas, Bombardopolis, Cité Soleil, Anse-à-Galets/Pointe-à-Raquette, Léogane, Grand Goâve, Tiburon and Jacmel. One of the 18 decisions concerned the two posts of senator in the Department of the Center.
The reversals sparked protests and caused unrest across the country. Following discussions between the Haitian authorities involved, the Joint OAS-CARICOM Electoral Observation Mission (JEOM) was asked to analyze the decisions taken by the Provisional Electoral Council (CEP) regarding these 18 cases. Within the limits imposed by its mandate, the JEOM agreed to analyze the decisions underlying the final results regarding the cases mentioned above.
As a first step, the Mission started its work at the CEP, where the clerks of the electoral tribunals had been made available for the JEOM. The Mission examined the BCEN decisions and all documents filed by lawyers of the plaintiffs and defendants, which enabled the Mission to compare the information contained in the records to the reasons given for the decisions. Subsequently, the JEOM went to the Vote Tabulation Centre (CTV) to undertake a verification of the results sheets (PVs) that had been validated or annulled by the decisions of the BCEN. These decisions had led to changes in the position of the candidates. The JEOM examined whether the annulment or the validation of the PVs identified by the plaintiffs or the defendants had been done in accordance with rules established by the CEP. The Mission also verified the validity of the electoral lists (LEP) contained in the sachets of the presidential PVs. It is important to note that the 18 established criteria to determine the validity of the PVs are in compliance with the Electoral Law and are included in the Manual of the CTV authorized by the CEP.
Probably under pressure from missed deadlines and other constraints, it appears that the judges of the BCEN did not display the necessary serenity and patience to draft their decisions with the thoroughness required. For the most part, the decisions are improperly drafted and it is often difficult to follow the thinking. The arguments of the contending parties are neither spelled out our discussed in detail. In general, the decisions merely proclaim the winner without setting out the arguments or the reasoning that led to the decision. This rendered the work of the BCEN opaque in the eyes of the parties involved in the process and of the public in general.
Generally, the decisions of the BCEN are based on the request of one of the parties to count the PVs in its favor that had been set aside by the CTV, or to exclude the PVs in favor of the other party that had been taken into account and, sometimes, these two requests at the same time. Without giving any reasons for accepting or rejecting a request, and without assessing the evidence, the BCEN simply indicated that the evidence was sufficient or insufficient.
However, and contrary to the criteria established by the CEP itself, the judges of the BCEN decided to take into account, without prior verification, PVs that had been correctly set aside by the CTV. Similarly, the judges took the decision to set aside some PVs that met with the criteria of validity established by the CEP without verifying the correctness of the allegations of irregularities made by the plaintiffs.
It is important to note that in none of the cases analyzed did the judges of the BCEN take advantage of their ability to undertake verifications at the CTV, nor did they set up commissions to do so under Article 190 of the Electoral Law. This profoundly affected the correctness and the validity of the decisions of the BCEN to either annul or validate PVs as requested by the plaintiffs and the defendants. It is also worth noting that parties that questioned set aside or counted PVs did not always provide solid or relevant evidence to substantiate their claims. Neither did the plaintiffs demonstrate that the exclusion of PVs in their disfavor was unjustified under the criteria established and published by the CEP.
In the absence of reasons behind the decisions; in the absence of prior verification at the CTV by the BCEN in compliance with Article 190 of the Electoral Law to determine which PVs should have been set aside or counted in order to change the number of votes and therefore the position of the candidates, the JEOM recommends a return to the preliminary results in each of the eighteen cases examined.