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2019 Elections - Centre for Democracy & Development

Judgements and Jurisprudence: Presiding over presidential petitions in Africa

By Publication, Publications, Uncategorized

By Dr O’Brien Kaaba

In 2017 the Kenyan Supreme Court became the first court on the African continent to annul a presidential election following full due process. In February 2020 the Malawian High Court, sitting as a constitutional court, followed suit in cancelling the results of the May 2019 presidential election. Not only did the judges demonstrate extraordinary courage in pronouncing these verdicts, but they demonstrated what a competent and independent judiciary can do to ensure democratic electoral processes are free, fair and credible on the continent.

Hiding behind technicalities

For the most part courts across Africa have been unwilling to reverse electoral outcomes, preferring instead to seek refuge in technicalities when casting judgement. This reflects poorly on judicial independence, and brings to the fore the reality that many judges are appointed as a reward for their loyalty to those in power, not because of their competence and capabilities.

The first of these is the use of procedural technicalities to dismiss the case, thereby avoiding hearing its merits. In 2016, the Zambian Constitutional Court decided to abandon the election petition, without determining its merits, on the pretext that the 14 days set by the Constitution, during which the case should be heard and determined, had elapsed.

Another technicality used by courts is simply to abdicate judicial responsibility and avoid rendering a judgment. This has been a common approach deployed by the Zimbabwean judiciary. Following the 2002 elections, a petition was filed in the High Court by losing opposition candidate Morgan Tsvangirai seeking the nullification of the presidential election results on the grounds that the election was characterised by widespread violence and intimidation, corruption, voter fraud and ballot-stuffing. After hearing the case for seven months, Justice Ben Hlatshwayo, in a terse one-page ruling, dismissed the allegations and promised to render a reasoned judgment in two weeks. The judgment never came.

The 2013 Zimbabwean elections were also challenged in Court. To prepare their case, the petitioner made a preliminary application to the Court to allow him to have access to election materials. The Constitutional Court reserved ruling on the application and by the time the hearing of the petition commenced, had still to take a decision. This forced the petitioner to withdraw the petition, indicating that it was going to be impossible to substantiate the allegations of irregularities without access to election materials.

A final, and arguably most common technicality, is to misapply the materiality test, also known as the substantive effect rule. This rule is premised on the idea that some electoral irregularities may be minor and inconsequential, while others may be significant enough to have a bearing on an election’s fairness and legitimacy. Inconsequential mistakes, omissions and commissions should not lead to an annulment of an election, provided that its overall fairness was not vitiated. But the substantive effect rule has provided an escape route to timorous or compromised judges who prefer to defer to incumbents.

In Uganda, successive election petitions by opponents of the incumbent have been unsuccessful, ultimately because the petitioners have been unable to prove, quantitatively, that the alleged malpractice has substantially affected the outcome of the election. This focus on numbers can effectively legitimatise large scale election cheating. But proving substantive effect is difficult. It is further complicated by short timeframes and the fact that the data that can be used to validate the claim is often in the hands of the electoral management body and that some irregularities, such as political violence, are not susceptible to numerical quantification in relation to election results. Interpretations of the substantive effect rule have been applied in judgements that confirmed the outcome of recent elections in Namibia, Botswana and Zimbabwe.

Historic decisions

In August 2017, the Kenyan Supreme Court made a ground-breaking decision when it annulled the election of Uhuru Kenyatta. By a majority of four to two, the court held that the presidential poll was not conducted in accordance with the Constitution and the applicable laws, rendering the declared result invalid, null and void; that the irregularities and illegalities in the election were substantial and affected its integrity, the result notwithstanding; that Uhuru Kenyatta was not validly declared as president-elect and that the declaration was invalid, null and void; and that the electoral commission should conduct fresh presidential elections in strict conformity with the constitution and applicable electoral laws within 60 days.

The Kenyan Court’s decision demonstrated the value of proactive adjudication. Prior to the elections, the 2011 Elections Act was amended to introduce the Kenya Integrated Electoral Management System. This was intended to be used in biometric voter registration and, on polling day, in voter identification as well as instantaneous transmission of election results from polling stations to the Constituency Tallying Center and the National Tallying Center. The transmission of results required the use of standard forms – Forms 34A and 34B – but in many instances the results were not transmitted in the manner required by law.

The Independent Electoral and Boundaries Commission (IEBC) gave no plausible explanation for this, while the petitioners alleged that the system had been hacked and results tampered with in favour of the incumbent. The Court appointed its own IT experts to assess the IEBC servers and report their findings. However the IEBC, in violation of the court order, declined to give the court-appointed IT experts access. The Court held that the failures by IEBC were a clear violation of the 2010 Constitution and the Elections Act (as amended). It raised serious doubt as to whether the election results could be said to be a free expression of the will of the people, as required by the Constitution. 

Perhaps the judgment’s greatest contribution to electoral jurisprudence in Africa was its correct application of the substantial effect rule. It held that elections are not just about numbers and that the quality of the entire process matters when gauging whether the result reflects the will of the people. In the words of the Court, “even in numbers, we used to be told in school that to arrive at a mathematical solution, there is always a computation path one has to take, as proof that the process indeed gives rise to the stated solution.”

Similar jurisprudence was applied in relation to Malawi’s 2019 presidential election petition. The Court found that election results forms, which were used to tabulate national figures, were pervasively altered unlawfully. Based on adduced evidence, it concluded that a substantial number of the official result sheets had results altered using correction fluid, popularly known as Tippex. The judgement reached was that the Electoral Commission had failed to preside over a free and fair election, that the electoral process was compromised and that it was conducted in a manner that violated electoral laws and the Constitution. It nullified the election and ordered a new election to be held within 150 days. The re-run saw opposition candidate Lazarus Chakwera win 58.6% of the vote to comprehensively defeat incumbent, and winner of the 2019 poll, President Peter Mutharika.

In terms of the threshold for the integrity of the election, Malawi’s High Court, followed the Kenyan precedent of 2017, in agreeing that it is not just numbers, but the quality of the electoral process that matter in determining the substantial effect of irregularities on election results. This is an important recognition that the judiciary must consider the context in which an election is held in order to determine if the will of the people could have been exercised freely.

Continuity…for now

The decisions reached in Kenya and Malawi demonstrate the capacity of what competent and courageous judges can do to enforce electoral rules. The judgments also pose a challenge to other African judges: will they follow in their footsteps or will they choose to hold fast to the archaic and pro status quo jurisprudence that has prevailed up to now?

Early indications suggest that continuity, rather than change, continues to prevail. Recent electoral decisions in the Democratic Republic of Congo, Zimbabwe, Botswana and Namibia have continued to produce judgements that look for substantive effect on the outcome, and less on the process. In Uganda, a petition to challenge the outcome of the January 2021 presidential election was withdrawn over concerns about the judicial independence.  

Nonetheless, the verdicts handed down in Kenya and Malawi serve as landmark decisions, that over time will serve as a yardstick of contextually relevant presidential election jurisprudence in Africa. Both set a precedent that the quality of an election and the environment in which the election is held matter, and have a bearing on the outcome, regardless of numbers.   

Dr O’Brien Kaaba is a lecturer at the School of Law at the University of Zambia and a senior research fellow at the Southern Africa Institute for Policy and Research.

Editor’s note: This is the third article in a nine-part series in which leading thinkers and practitioners explore key questions and themes about the current state of electoral democracy in Africa. You can read the second and first piece.

Electoral Corruption In Nigeria: A Case Study Of The 2019 General Elections

By Publication, Publications

A major pillar of post-1990 democratic transitions in Africa is the periodic organization and conduct of constitutionally entrenched competitive party
elections, by an independent electoral management body (EMB), to elective
public political offices in the executive and legislative branches of government in the African state.

The conduct of the elections is required to conform substantially with guiding principles of electoral integrity that provide the indicators and measure of free and fair elections.


The principles are designed to guarantee that the outcomes of democratic
elections are uncertain, in the sense of their being “indeterminate ex-ante.” The outcomes are expectedly “indeterminate ex-ante” because the measures and indicators to ensure such outcomes are designed to create a competitive electoral level playing ground to make it possible for yesterday’s winners to become today’s losers, and yesterday’s losers, today’s winners.

Although there is no general agreement on the meaning of electoral integrity, the operative or defining word in the concept, integrity “refers to incorruptibility or a firm adherence to a code of moral values,” in the conduct of democratic elections.

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Kogi State: Post-Election Analysis of Disinformation

By Blog, PublicaitonsNo Comments

The Kogi state off-cycle elections were conducted on 16th November 2019. Twenty-four political parties participated in the election, but there were three frontrunners: Musa Wada of People’s Democratic Party (PDP), Yahaya Bello of All People’s Congress (APC), and Natasha Akpoti of Social Democratic Party (SDP). Given the trend of disinformation in previous elections held in the country, the Centre for Democracy and Development
(CDD) chose to intervene in two ways:

  1. CDD conducted disinformation mapping, aimed at identifying key actors and mechanisms of action in Kogi’s disinformation ecosystem;
  2. This mapping informed a stated-based fact-checking structure that sought to identify and counter disinformation spread before, during and right after the election. Our methodology for disinformation mapping involved a combination of a desk review of reports on political and electoral trends and in-person unstructured interviews. Disinformation mapping revealed that false narratives were spread by actors called “Data Boys”
    and “Shekpe Boys” who operate in online and offline spaces.
  3. The primary mechanism of action was tailoring messages to exploit ethnic cleavages in Kogi as they largely coincide with partisan divides. The tension between the two major ethnic groups, Igala and Ebira,
    was exploited the most. These messages leverage confirmation bias to entrench polarization; their efficacy is enhanced by high levels of poverty and illiteracy in Kogi state. Our pre-election report details specific sources of disinformation.

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Sorting Fact From Fiction : Nigeria's 2019 Election

By Blog, Nigeria Election 2019, PublicationsNo Comments

Nigeria 2019 Election Fact-File

The Centre for Democracy and Development’s Election Analysis Centre (EAC) for the 2019 presidential and gubernatorial elections, represented the first attempt in Nigeria at running a rigorous fact-checking process before, during and after the electoral process of both presidential and gubernatorial elections. CDD’s specific mandate was to provide a filter and check on viral stories, that were demonstrably false. Or to confirm, with sources and justification, if certain events were true or with fact (s). To do this CDD worked in collaboration with the National Democratic Institute and the Premium Times. However, there is scope for greater collaboration with other like-minded institutions such as the Independent National Electoral Commission (INEC) in the future. Nigeria 2019 Election Fact File

Methodology: Nigeria 2019 Election Fact File

Our methodology to achieve ‘Nigeria’s 2019 election fact-file’ during the elections, was a highly focused version of our usual fact-checking process. A small team of seven individuals each had individualised functions. We had two spotters who monitored the online space, including Facebook groups, Twitter accounts and WhatsApp groups. The groups we monitored had already previously been tagged in our ever-expanding database as sources of disinformation, through research and online mapping efforts that will be described further below. The spotters would then forward news stories that were popular (for example over a hundred shares on Twitter) to the fact-checkers.
This ensured that we highlighted and countered stories that were significant and prevented us from popularising false information [without fact (s)] that may not have reached a wide audience until our fact-check. The process for checking the validity of a story during the elections was facilitated by our nationwide-wide network of election observers² in each of Nigeria’s 36 states plus the Federal Capital Territory (FCT). This meant that our fact-checkers could reach out to an observer in any state to confirm a story. Once the validity of a story was verified, the fact-check itself would be written and sent to our designer to be turned into an infographic. This infographic was published on Twitter³ with all the relevant hashtags to ensure better reach and visibility (Methodology employed for Nigeria 2019 election fact file).

Spotters vs Fact Checkers for Nigeria 2019 Election

Monitoring the online landscape is not just relevant for fact checking, but allowed our research team to collect examples of hateful, inflammatory or false content; find groups that were spreading it; and track trending topics and disinformation campaigns online. Groups and accounts that we initially found led us to more, which if significant were added to our list online sources to be observed in future. In our online monitoring, we were able to identify three key content types that we subsequently focused on:

  1. Election logistic
  2. Election-related violence videos
  3. Conspiracy theories

Images or videos were analysed using tools such as reverse-image search to verify their origins and see if the content had appeared elsewhere. The fact checking process for a single story could take up to one hour and involved detecting a trending story – sometimes shared on private WhatsApp groups⁴, reaching out to our observers in the field and then designing and publishing the fact-check. Our standard format was in the form of an infographic that clearly showed the material being fact-checked, whether it be a picture, or a headline or a tweet. We chose infographics because the format allows us to convey information in an easily consumable form. Our tracking showed that our infographics had on average, 20 interactions on Twitter. In looking for sources of fake news, we were able to map the partisan nature of the online landscape. (Nigeria 2019 Election Fact File)
Download: Sorting Fact from Fiction.
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WhatsApp and Nigeria’s 2019 Elections: Press Release

By Blog, Nigeria Election 2019, Press ReleaseNo Comments

WhatsApp both strengthens and undermines Nigerian democracy, says UK-Nigeria research team

Research findings were released today by a UK-Nigerian research team examining the role of WhatsApp in Nigeria’s 2019 elections. Drawing on citizen surveys and interviews with political campaigns, the report underlines the ways in which WhatsApp has promoted the spread of “fake news” around elections, but has also strengthened accountability and promoted inclusion in other areas.
At the Shehu Musa Yar’Adua Centre in Abuja, Nigeria, on Monday 29 July, researchers from the Centre for Democracy and Development (Nigeria) and University of Birmingham (UK) presented key findings from a WhatsApp-sponsored research project on the role of WhatsApp in Nigeria’s 2019 elections. The report, WhatsApp and Nigeria’s 2019 Elections: Mobilising the People, Protecting the Vote, is available in full at http://bit.ly/2GAJSRF.
WhatsApp is the most popular messaging app in 40 African countries, including Nigeria, due to its low cost, encrypted messages, and the ability to easily share messages with both individuals and groups. The aim of the research project was to shed light on how the app is influencing Nigerian elections, particularly in light of concerns – in Nigeria, and across the globe – about social media usage and the spread of so-called “fake news”.
Dr Jonathan Fisher (University of Birmingham) led the research team, which included Idayat Hassan (Centre for Democracy and Development), Jamie Hitchen (Independent Consultant) and Professor Nic Cheeseman (University of Birmingham). The research consisted of 50 interviews with political campaigns, activists, scholars and experts in Abuja, Oyo and Kano and a citizen survey (n=1,005) and focus groups in Oyo and Kano states.
Focusing in particular on governor races in Oyo and Kano, the research found that:

  1. Organization: The political use of WhatsApp is becoming increasingly sophisticated and organized at the presidential level. By setting up multiple overlapping WhatsApp groups, organizations such as the Buhari New Media Centre (BNMC) and Atikulated Youth Force (AYF) – set up to support, respectively, the campaigns of President Buhari and his main opponent, Atiku Abubakar – can send messages to tens of thousands of people at the touch of a button by forming hundreds of groups of 256 members. Things look very different below the national level, however, where a significant proportion of activity remains informal. This limits the ability of formal structures like parties to set and control narratives at the local level. Dr Fisher says that:

“Our research shows that while WhatsApp replicates existing political patron-client networks to some extent, it is also helping less traditional power-players to enter the political arena – particularly tech-savvy youth.”

  1. Content: Different types of content shared via WhatsApp have varying impacts depending on who they have been shared by, and how they are presented to the user. Idayat Hassan says that:

“The format, style, source and the content of a piece of information shared or received on WhatsApp all have a critical impact on how far they reach, and how far they are believed…pictures and videos are increasingly influential.”

  1. Networks: Offline and online structures are interlinked, reinforcing and building on each other in ways that are important to understand. As a result, in many respects WhatsApp amplifies the significance and influence of networks that already exist within Nigerian politics and society. Jamie Hitchen says that:

“The interaction between information shared on WhatsApp and the offline context is a crucial part of the digital eco-system, and challenges claims that the platform has revolutionised political campaigning.”

  1. Impact: WhatsApp is used to both spread disinformation, and to counter it. One of the most notorious messages of the election – the false story that President Buhari had died and been replaced by a clone from Sudan – was widely circulated on WhatsApp. But candidates also used WhatsApp to alert citizens to false stories and to “set the record straight”. Professor Cheeseman says that:

“Social media platforms are both a threat to democracy and a way to strengthen it. WhatsApp is being used to spread “fake news” on the one hand, and run fact-checking campaigns and election observation on the other. The challenge is to reduce risks without undermining the way that social media can strengthen accountability and promote inclusion.”
The research also underlines that, particularly at the sub-national level, while WhatsApp gives candidates an electoral advantage, social media alone cannot win an election. Instead, the most important thing for a candidate is to be an authentic leader of the community – to be present and accessible. This means that a candidate’s ground campaign remains the most important thing to get right. Thus, while WhatsApp has transformed the electoral environment, it has not revolutionized it.
The research findings suggest both short- and longer-term recommendations:
In the short-term, making it easier for individuals to leave WhatsApp groups and report disinformation; reinforce the ability of group administrators to set standards; target digital literacy training to social influencers and strengthen WhatsApp’s ability to understand the risk of misuse by opening an office in the African continent.
In the longer-term, state and federal governments should invest more in digital literacy as part of the national curriculum, while political campaigns should develop social media codes of conduct for future elections. Online protection of data and civil liberties should also be enhanced in Nigeria, and beyond.
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Further information:

  • Media Manager (University of Birmingham): Hasan Salim Patel

Email:      h.s.patel@bham.ac.uk
Telephone:  +44 (0) 121 415 8134 / +44(0)7580 744943

  • Nigeria Contact (Centre for Democracy and Development): Idayat Hassan

Email: ihassan@cddwestafrica.org
Telephone/WhatsApp: +234 (0) 703 369 0566

  • UK Contact (University of Birmingham): Dr Jonathan Fisher

Email: j.fisher@bham.ac.uk
Telephone/WhatsApp: +44 (0) 7894 452 788
 

Sorting Fact From Fiction

By Blog, Nigeria Election 2019, PublicationsNo Comments

The Centre for Democracy and Development’s Election Analysis Centre (EAC) for the 2019 presidential and gubernatorial elections represented the first attempt in Nigeria at running a rigorous fact-checking process before, during and after the electoral process of both presidential and gubernatorial elections. CDD’s specific mandate was to provide a filter and check on viral stories that were demonstrably false. Or to confirm, with sources and justification, if certain events were true. To do this CDD worked in collaboration with the National Democratic Institute and the Premium Times. However, there is scope for greater collaboration with other like-minded institutions such as the Independent National Electoral Commission (INEC) in the future.
Monitoring the online landscape is not just relevant for fact-checking, but allowed our research team to collect examples of hateful, inflammatory or false content; find groups that were spreading it; and track trending topics and disinformation campaigns online. Groups and accounts that we initially found led us to more, which if significant were added to our list online sources to be observed in future. In our online monitoring, we were able to identify three key content types that we subsequently focused on:

  1. Election logistic
  2. Election-related violence videos
  3. Conspiracy theories

Images or videos were analysed using tools such as reverse-image search to verify their origins and see if the content had appeared elsewhere. The factchecking process for a single story could take up to one hour and involved detecting a trending story – sometimes shared on private WhatsApp groups⁴, reaching out to our observers in the field and then designing and publishing the fact-check. Our standard format was in the form of an infographic that clearly showed the material being fact-checked, whether it be a picture, or a headline or a tweet. We chose infographics because the format allows us to convey information in an easily consumable form. Our tracking showed that our infographics had on average, 20 interactions on Twitter. In looking for sources of fake news, we were able to map the partisan nature of the online landscape
Download: Sorting Fact from Fiction.

[rt_animated_link_style animated_link_style=”two” animated_link_anchor=”url:https%3A%2F%2Fwww.cddwestafrica.org%2Fwp-content%2Fuploads%2F2019%2F07%2FSORTING-FACT-FROM-FICTION.pdf|title:Sorting%20Fact%20from%20Fiction||” animation=”swing” extra_class=”link” extra_id=” Sorting Fact from Fiction“]

Did INEC Threaten to Award Presidential Election Victory to Atiku?

By Fact CheckNo Comments

Verdict: FALSE

The Claim:

CDD has spotted a story claiming that the Independent National Electoral Commission (INEC) has threatened to award the election victory to the presidential candidate of the People’s Democratic Party (PDP) for the 2019 presidential elections. The claim was made on April 9, 2019, by the dailyadvent. It says that PDP and their presidential candidate, Atiku Abubakar, who is challenging the outcome of the presidential elections, have filed an election petition and that President Muhammadu Buhari, has till April 16, 2019, to respond to the petition. And that the court of Appeal has issued out a last warning to INEC and APC that they have till Thursday to file their responses to the election petition.

The Facts:

CDD fact-checkers investigated the story and discovered that the story is copied from punchng.com and uses a sensationalist headline to imply a different meaning. The blog report attributed their claim to an anonymous source, alleging that Buhari, INEC, and APC were yet to respond to the petition. Whereas, the Punch attributed a similar demand in their report to a valid source who informed its reporter that the party would respond to the petition before the 21 days deadline.
Also, the law is clear on how the election result declared by INEC can be invalidated. Only a court of competent jurisdiction can renounce a candidate’s victory and announce another as the victor once INEC has issued the certificate of return by INEC. Meanwhile, neither has the Presidential Election Tribunal given any judgement on the petition filed by PDP and its candidate nor did INEC declare any presidential election result different from the one earlier declared that saw Muhammadu Buhari of the APC won his closest rival, Atiku Abubakar of PDP,  with a margin of 2.9 million votes.

Conclusion:

The law is clear on how electoral outcome can be invalidated, Only a court of competent jurisdiction can renounce a candidate’s victory and announce another as the victor once INEC has issued the certificate of return. The 2-month old blog, dailyadvent, lacks credibility and should in no way be taken seriously.

How Women Fared In The 2019 Elections

By Nigeria Election 2019No Comments

 

 

Nigeria’s population is estimated to be 200,923,640. Women form 49.4% of this figure, with a total of 99,180,412.

However, female political representation in the 2019 elections was negligible relative to the approximately half of the population they constitute. 2,970 women were on the electoral ballot, representing only 11.36% of nominated candidates.

From the initial 62 elected at the 2019 poll, women gained additional numbers from court judgement and bye-election conducted. A total of 70
women are now in elective positions, a meagre 4.71% of elected officials. This figure represents a decline from the 2015-19 period, where women formed 5.65% of elected officials.

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MATTERS ARISING FROM THE 2019 SUPPLEMENTARY GOVERNORSHIP ELECTIONS

By 2019 Supplementary Elections, Nigeria Election 2019No Comments

The Centre for Democracy and Development’s (CDD) Election Analysis Centre (EAC) deployed trained observers to five states (Bauchi, Benue, Kano, Plateau and Sokoto States) where supplementary governorship elections held on March 23, 2019. The observers were tasked with observing and reporting on the polling process, including opening times, accreditation and voting, the collation processes, and the level of compliance of INEC ad-hoc staff, voters, security operatives, politicians and their supporters, and other stakeholders with the 2019 INEC electoral guidelines and regulations, extant electoral laws and international standard for conduct of credible elections. CDD-EAC comprises of leading experts on elections and democracy. The experts reconvened to provide a rigorous analysis of the supplementary elections process. This preliminary report highlights our key findings from their observations.

 
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MATTERS ARISING FROM THE 2019 SUPPLEMENTARY GOVERNORSHIP ELECTIONS

PRELIMINARY REPORT AHEAD OF THE 2019 SUPPLEMENTARY ELECTIONS

By Nigeria Election 2019No Comments

CDD has deployed trained observers to observe the Saturday, March 23, 2019, supplementary elections in Bauchi, Benue, Kano, Plateau and Sokoto States. As in previous elections, an Election Analysis Centre (EAC) will be opened on Saturday at Centre’s Conference Room, located at CITEC Mount Pleasant Estate, Mbora District, Abuja. EAC comprises of leading experts on elections and democracy, and it serves as a one-stop-shop for all election-related information, including combating fake news and disinformation, as it relates to the focal states.

In this statement, CDD highlights the level of preparedness of INEC and political and security situation in the six states where supplementary elections will be conducted. It also lamented the rising phenomenon of vote buying and called on relevant stakeholders to take the necessary steps in ensuring the conduct of credible and peaceful elections.

 
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PRELIMINARY REPORT AHEAD OF THE SUPPLEMENTARY ELECTIONS