Political Landscape

Afghanistan’s New Electoral Laws: Changes and red flags

Counting votes in the 2010 election, Kabul. Picture: Martine van Bijlert

Counting votes in the 2010 election, Kabul. Picture: Martine van Bijlert

With last week’s ratification of the two electoral laws, Afghanistan finally knows which laws will govern its upcoming election. The new legislation clarifies how the elections are to be conducted, by whom and how they are to be appointed. Compared to the often tumultuous process that shaped them, the laws are fairly balanced and workable, but they did not bring much of the needed reform and there are a few red flags. AAN’s Martine van Bijlert discusses what changed and what didn’t and stresses that, as shown in previous elections, it is the actual conduct of all involved, rather than the laws, that determines how elections really go.

The two laws – the Law on the Structure, Duties and Privileges of the IEC and ECC (SDP) and the Electoral Law (EL) – were finally signed by the President on 17 and 20 July 2013. It has been a drawn-out and confusing process with heated discussions and heightened suspicions that the government was out to stack the cards in its favour. The months of politicking and back-and-forth meant that things were cut very close, with the elections less than eight months away, the parliamentary recess looming (they all went home shortly after, although they did vote off the Interior Minister first) and the IEC warning that the laws may soon be too late to be of much use.

Between both houses of parliament, the cabinet and the palace, amendments were added, removed, reinserted and removed again, often with little regard for the practical consequences of the decisions. Given the messiness of this process, the two laws are relatively balanced. And, compared to some of the suggested changes along the way, they are not that different from the electoral legislation that Afghanistan has had up till now.(1) The two main outcomes, in terms of who will control the vote, is that (a) the President no longer has full discretion to appoint whomever he wishes to both the Independent Electoral Commission (IEC) and the Electoral Complaints Commission (ECC); and (b) that the ECC as an independent body has been retained, although without international participation.

The passed legislation can thus be viewed in different ways. On one hand it can be seen as a set of fairly workable laws that have survived an erratic legislative process and that signal the normalisation of a highly politicised process. The passing of the laws does after all, if nothing else, mean that the process has not stalled (yet). And so it was met with relief and kind words, for instance by the US Embassy in Kabul:

“We commend this establishment of an electoral framework through broad consultation and compromise. This is a positive development consistent with the government’s commitment to holding transparent, credible, and inclusive elections on time, as required by the Afghan constitution.”

But the laws are, on the other hand, a disappointment for those who saw this as an opportunity to reform Afghanistan’s electoral system, in particularly with regard to the unusual and erratic version of the Single Non-Transferrable Vote (the chance to improve Afghanistan’s voter registry, preferably through the introduction of accurate voter lists, was already missed quite a while ago). What is clear is that the laws are the outcome of a political tug-of-war, and the sudden acceleration of the laws’ ratification seems to indicate that this may well have been part of a set of deals and compromises that have been arrived at behind the scenes. This has averted a stalemate, but has probably come at a cost – which makes it complicated to view this as either a strictly positive or negative step.

Pulling the electoral laws in different directions

While the laws were drafted, amended and re-amended, they were roughly being pulled in three directions. First, there was the loose coalition of those advocating for reform – political parties, civil society groups, the opposition. The gathered groups called for greater independence and transparency in the electoral process, and argued that Afghanistan’s unusual electoral system had strengthened the currents of fragmentation, deal-making and unpredictability in Afghanistan’s politics. They objected to the unfair advantages the President and his entourage had, in terms of the appointment of favourable electoral authorities and access to state resources. Concrete proposals included a change in the electoral system, so that part of the elections would be based on party lists and better safeguards for the independence of the electoral bodies; as well as the continued presence of international members in the ECC.

They managed to get some of their demands included into early drafts of the law – for instance the mixed, partially party-based electoral system and international members in the ECC – but most of them were later removed under heavy pressure of the palace, as was, at some point, even the whole notion of an independent complaints commission. The ECC finally did survive the attempts to get rid of it – in the end, the palace could not afford to completely estrange the opposition – as did the establishment of an independent selection committee for the senior IEC and ECC positions.

The second and strongest group was what is now generally referred to as the ‘Karzai team’ – a broad, largely patronage-based network of government officials, MPs, strongmen, businessmen and politicians, set to maintain and consolidate the status quo – that took their cues from Karzai’s palace advisers. The most insistent palace interventions – such as the removal of the ECC and its replacement by a Special Tribunal, and the unrelenting resistance to internationals in the ECC – are based on a deep suspicion that the international community intends to use the elections to weaken or uproot the ‘Karzai team’ (which is also how the palace views the international involvement in previous elections).

The opposition and critical observers closely follow the palace’s moves; they are deeply suspicious that all its decisions and interventions are driven by the desire to hold on to power and to undermine the possibility of a fair election. And although the laws in their current form do not include some of the more extreme versions that the palace had tried to strong-arm at different stages, it has scored important victories, including the curbing of direct international influence and the fact that Karzai still has the last say on who gets appointed to the IEC and ECC.

The third strand of influence is shaped by the interests of the MPs themselves, as people who have been elected (or selected) under the prevailing system. This included a certain bias towards the existing SNTV system, which they had obviously managed to use to their advantage. It also meant that many of them were open to ‘change their mind’ in the course of the process.

Some of the main changes in the electoral legislation

Selection committee

One of the changes advocated by those asking for greater transparency and a more level playing field was the introduction of a selection committee for the IEC and ECC commissioners. The task of the selection committee is to draw up shortlists of suitable candidates for the President to choose from: 27 for the nine IEC seats and 15 for the five ECC seats. The actual decision whom to appoint stays with the President, but the idea is that the committee will at least vet the candidates on credentials and ensure that the list is balanced. But, of course, a nomination procedure does not guarantee independence: an appointments process can be played and one can gain influence after people have been appointed. And although the new system introduces a certain transparency, it also introduces a new layer of jockeying, including pressure on the selection committee on whom to introduce and a little battle over the single position that has not been fixed by law, the civil society representative.(2)

Relationship between the IEC and the ECC 

The new legislation not only preserved the ECC as an independent body, it also defines the relation between the IEC and the ECC in much more detail. It reiterates that the IEC is responsible for the official announcement of the primary and final results of the elections, that the final results are to be based on the ECC’s findings and that the final results are unchangeable (SDP art. 13). It moreover specifically states that the ECC’s decisions are “ultimate and unalterable” (SDP art. 26); that the IEC can object to ECC decisions that it deems unfair, but that ultimately the ECC decides (EL art. 59). All of this appears to be a clear reference to the drawn-out process in 2010/11, when the President introduced a Special Tribunal to overturn the final results. The Tribunal raided the IECorganised widespread messy recounts, and called for the replacement of 62 MPs, which resulted in a drawn-out and complicated scuffle and finally the removal of nine MPs by the IEC – all without a legal basis.

Allocated seats: women, kuchis

The Constitution stipulates that on average two women are to be elected to the Wolesi Jirga from each province (art. 83). The previous electoral decrees did something similar for provincial councils: at least one quarter of the seats in each council was to be reserved. The Wolesi Jirga quietly removed the designated provincial council seats for women from the draft law, after which the Meshrano Jirga reinserted it again – although they changed it to “at least 20 percent of the seats of each provincial council” (EL, art 30.2; see here for a discussion of the possible implications). The new law is rather unspecific on what should be done if there are not enough women candidates for the allocated seats. With regard to the Wolesi Jirga seats it states that “the Commission shall, in accordance with a special procedure take such measures to ensure that the seats allocated to women do not remain vacant” (EL art. 25.3), without making explicit that the vacant seat will be taken by a woman, and makes no mention of what to do in the case of unfilled provincial council seats.

For the ten allocated kuchi seats in the Wolesi Jirga, the new law now introduces seven electoral zones. The new set-up has, curiously, resulted in a situation where we now have both designated male and female seats: one male seat per zone and three female seats for the whole country (EL art. 23). A special Wolesi Jirga seat for the small Hindu and Sikh communities did not make it into the final version of the law.

Candidate criteria

The candidate requirements have remained roughly the same as in the 2010 presidential decree, but there are considerable changes compared to the 2005 decree that still governed the previous presidential vote. This means that the criteria to run for President are considerably tougher this time around: candidates now have to provide 100,000 voter cards and fingerprints from at least 20 provinces, with at least two percent from each province (up from just 10,000 in 2005) and they have to file a deposit of one million AFS or approximately 17,500 USD (up from 50,000 AFS in 2005 and 250,000 AFS in 2010). The deposit will be refunded to those who receive at least 10 percent of the total votes (EL art. 45). This obviously limits who can run for president, but will also discourage some of the more frivolous or overambitious candidacies.(3)

Candidate requirements include nationality, age, education and not having been convicted of crimes against humanity, a felony or deprived of civil rights by court (EL art. 13-8). The law no longer precludes those commanding an unofficial armed group from running. The removal of this clause, and of the related vetting procedure (see here for what this looked like during past elections), means a significant simplification of the process, but it is also a stark admission of defeat: of the failure of disarmament, the proliferation of militias and the inability to separate armed commanders from politics.

Some tricky changes

The new legislation reiterates the Constitutional prerogative of the President to call a referendum, clarifying that he can “refer to the opinion of the people of Afghanistan in relation to important national, political, social and economic issues.” It is to be organised by the IEC and to be held “in one day across the country” (EL, art. 76). It is however unclear what the status of the outcome of such a referendum would be or how this relates to the, also constitutionally-mandated, Loya Jirga or to other consultative gatherings, such as the Peace Jirga.

There are also a few additions that seem directly inspired by the past experience of massive fraud and the different ways in which parties wished to deal with it. Article 59.5 (EL) determines – by law – that a candidate receiving more than 80 percent of all votes in a polling centre is in itself insufficient to declare fraud. This is on the face of it not unreasonable – a fraud trigger, which this in essence is, should lead to investigation not automatic invalidation – but it reads as an addition designed to preempt a massive invalidation of votes (in both the 2009 and 2010 election around a quarter of all votes were invalidated) and to soften the trauma of the quarantining and invalidating process.

Article 59.2 (EL) seems designed to preempt discussions on the legitimacy and inclusivity of the elections, stating that: “A low turnout in some of the electoral constituencies or polling centres does not jeopardise the principles of freeness and universality of the elections.” Another potentially tricky article states that observers should “avoid making rumours and creating tensions” (EL art 55.2). Similar requests have been made of the media, in the past. On the eve of the 2010 election, for instance, the President’s Office released a statement in which it “respectfully encourage[d] all media to avoid reports and broadcasts that might create fear amongst the people during the election day,” basically asking them not to report on electoral shortcomings and “isolated security incidents” as these “might undermine the confidence of voters in the electoral process and discourage them from participation.” Including something like this in a law provides additional scope to seek to silence vocal and critical observer groups or to quash reports that can tarnish the image of a relatively smooth – free and universal – election.

The new laws may be fairly reasonable and workable, but the country’s polarised politics, and the tendency to revert to strong-arm tactics whenever there is a perceived threat, means that – whatever the laws say – we will continue to get a fair share of crude institutional improvisations, barely concealed manipulations and rowdy resolutions.

(1) Until now Afghanistan’s elections were governed by presidential decree. Initially this was a decree that was passed before Afghanistan had a parliament. After that, when the parliament failed to pass a new electoral law in the run up to the 2009 and 2010 elections, another decree was passed in 2010 while the parliament was in recess, and later ratified rather messily.

(2) The selection committee is comprised of chairpersons of the Wolesi Jirga and the Meshrano Jirga, the chief justice, the heads of the Independent Commission for Oversight of the Implementation of the Constitution (ICSIC) and the Afghan Independent Human Rights Commission (AIHRC), and one person from the civil society organizations related to elections. Earlier drafts had also included the leaders of registered political parties that had at least six members in parliament – which would have helped gain some much needed clarity, given that multiple parties tend to claim the same MPs and MPs rarely declare their party affiliations – but this was later removed. The Wolesi Jirga had at some point added that the Wolesi Jirga Speaker would be chair of the committee, but this was removed by the Meshrano Jirga and replaced by an internal election. In the end, Wolesi Jirga Speaker Ibrahimi was elected as chair anyway when the committee first met.

With the legislation passed, the next step is the nomination and appointment of the new IEC commissioners, a process that is already getting off to a messy start due to a scuffle over the last committee seat.

Unsurprisingly, the single seat in the selection committee that has to be filled through some kind of consensus – the civil society representative – has proven contentious. It was decided that the two main electoral observation bodies, FEFA and TEFA, were to present candidates for an informal election. When TEFA failed to do so, in a meeting on 21 July 2013, the FEFA candidate was elected. TEFA is now making a fuss, claiming that the election of Nader Naderi, founder and chairman of FEFA and former AIHRC commissioner, was not properly conducted; others however maintain that he is the chosen civil society representative. The splitting of civil society around representation has become a familiar feature (see for instance the run-up to the Bonn conference or the lobbying surrounding the AIHRC positions). But this is possibly more personal, given that Naderi has had his run-ins with the palace in the past for being outspoken on electoral manipulation and fraud.

(3) In 2009, 44 men and women registered their candidacy for President, three officially withdrew their candidacy before the list was finalised and a few more announced at the last moment that they were stepping down, although their names still appeared on the ballot. Only three candidates won more than ten percent of the vote.

The required number of cards/fingerprints and the deposit for the other elections is respectively 1000 and 30,000 AFS for the Wolesi Jirga; 2-600 cards and 20,000 AFS for the provincial council; 1-300 cards and 10,000 AFS for the district council; 10 cards and 5000 AFS for the village council; 250-2000 cards and 12,500-100,000 AFS for a mayor candidate; and 125-1,000 cards and 2,500-20,000 AFS for municipal council.

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Thematic Category: Political Landscape