Political Landscape

Afghanistan Election Conundrum (15): A contested disqualification of candidates


Supporters of some disqualified candidates including MullahTarakhel and Zardad Faryadi shut down the IEC headquarters in Kabul from 13 to 25 August in protest against the ECC’s decision to debar them from standing in 20 October elections. Photo credit: Tolonews

Supporters of some disqualified candidates including Mullah Tarakhel and Zardad Faryadi shut down the IEC headquarters in Kabul from 13 to 25 August in protest against the ECC’s decision to debar them from standing in 20 October elections. Photo: Tolonews

The campaign by more than 2,600 candidates to secure votes in the Afghan parliamentary elections is in full swing, for over a week now. 35 would-be MPs, however, are not running. They have been barred from standing by the Electoral Complaints Commission, chiefly for ties to illegal armed groups. In this piece, AAN’s Ali Yawar Adili looks at the vetting provisions and procedures. He concludes that a fair and complete vetting of candidates in Afghanistan, plagued by conflict and awash with illegal weapons and armed men, would always be a high-wire act. However, the vetting ahead of this election has again prompted questions about the transparency and completeness of the process. It has left doubts as to why some candidates have been allowed to stand for parliament and these particular 35 have not been. (Both the vetting procedure and the lists of candidates who have been disqualified, ‘warned’ and ‘advised’ can be found in annexes to this dispatch.)

AAN has put together a dossier of dispatches related to the coming elections, looking at preparations and political manoeuvring. Each dispatch in the Election Conundrum series will be added to it.

The Electoral Complaints Commission (ECC) announced the disqualification of 35 parliamentary candidates, mainly for links with illegal armed groups on 11 August. (Other reasons for disqualification include having criminal records or not meeting various eligibility requirements.) Many of those excluded from standing disputed the decision and, together with their supporters, blocked and shut down the Independent Election Commission (IEC) headquarters in Kabul and nine provincial offices: Faizabad, Gardez, Kabul, Kunduz, Pul-e Alam, Charikar, Pul-e Khumri, Samangan and Taloqan. As the United Nations Secretary General’s report to the Security Council highlighted, the closure of the IEC headquarters “effectively halted the process of entering data in the voter registry and the retrieval of voter registration books from a number of provinces, among other electoral preparations.”

According to article 44 of the electoral law, people who are members or commanders of illegal armed groups cannot run as candidates and the responsibility to investigate their links to illegal armed groups rests with a Vetting Commission. The commission is constituted as part of the ECC. It is headed by the EEC chair, Abdul Aziz Ariayi, and includes representatives from the National Directorate of Security (NDS), the Ministries of Interior and Defence and the Independent Directorate of Local Governance (IDLG). These institutions are supposed to provide the ECC with the needed intelligence about candidates. A list of candidates found to have links to illegal armed groups is recommended to the ECC for disqualification, which then takes the final decisions.

The requirement to exclude candidates with links to armed groups had existed in earlier versions of the electoral law (34 and 36 candidates were disqualified in 2005 and 2010, respectively). It was removed in 2013 (see AAN’s previous reporting here) and then reintroduced in 2016 in the electoral law governing the current round of elections. Looking at this new law in 2017, AAN wrote:

The vetting of candidates with links to illegal armed groups has been a complicated affair in the past, as these links were often difficult to persuasively prove (at least, this could be argued). As a result, the most powerful commanders were usually unaffected by the process. In the 2005 parliamentary election, for example, out of 208 candidates put forward by election stakeholders for disqualification for having links to illegal armed groups, only 34 were finally barred from running.

Ahead of the 2010 parliamentary elections (see this AAN report), NDS offices had reportedly collected evidence against about 220 candidates, but only 36 candidates were finally disqualified. The question of which candidates would be disqualified and which not, based on that evidence, was more of a process of political bargaining and pressure, than of strictly applying the legal provisions.

In the run-up to the October 2018 elections, there seemed to be a demand from among the people for disqualifying candidates tied to illegal armed groups. For instance, on 31 July, Ariana News reported that people from different parts of the country had demanded the disqualification of ‘strongmen’. Sima Samar, chairwoman of the Afghanistan Independent Human Rights Commission (AHIRC), it reported, had said that dossiers of individuals accused of human rights violations had been sent to the relevant institutions. A source from the AIHRC clarified to AAN that it had not, itself, sent the dossiers, but had responded to enquiries about individual candidates. ECC secretary and spokesman Ali Reza Rohani told AAN on 29 August that the ECC had acted upon the provisions of the law to disqualify the candidates and that this was an obligation the ECC had to fulfil.

However, given the presence of many militias and strongmen in the country, the concern is that the legal provisions were, yet again, have been applied selectively and unevenly. The ECC’s Rohani told AAN that he personally believed the vetting of candidates with links to armed groups should not have been included in the electoral law. He said that if such a provision was to be enacted, it should have been limited to “extremely serious and specific cases and exact, objective and measurable indicators for identifying them should have been set in the law.” He said that when he had been summoned to brief the Wolesi Jirga on the vetting process, he told the parliamentarians the provision was a double-edged sword: on one hand, it was good that it could lead to candidates linked to illegal armed groups being excluded, but on the other hand, “if not applied properly, it could be exploited against certain factions.” Rohani dismissed the idea that it had actually been used against certain candidates affiliated with certain factions, perhaps in order to steer clear of getting into detailed discussion about why certain individuals had been excluded. (1)

The legal framework

There are two main articles in the electoral law which serve as a basis for vetting candidates.

Article 39 says that anyone standing in an election must have been born an Afghan citizen or obtained Afghan citizenship at least ten years before nomination day; they should not have been convicted of crimes against humanity or felonies or have been deprived of their civil rights by a court and; they should be 25 years old. (2)

Article 44 of the same law says that commanders and members of an illegal group cannot stand in elections and imposes certain other restrictions, for example, sitting judges, governors or security forces officers cannot stand unless they resign from their posts. (3) It also authorises the setting up of the Vetting Commission. Any objections to the commissions decisions are then to be adjudicated by the ECC, whose decisions are final.

The electoral law provides no procedures or criteria for disqualification. This was remedied by the Vetting Commission on 21 June when it approved a procedure aimed at implementing the objectives of article 44. (The procedure is available on the ECC website in Dari here and an English translation can be found in Annex Two at the end of this piece.)

The procedure defines an illegal armed group as “a group of people which has a physical armed presence and is involved in the spread of insecurity, perpetration of organised crimes, smuggling of drugs, usurpation of public and private properties, cooperation with the enemy, violation of human rights and other illegal instances.” It defines a commander as “a person… directly or indirectly heading an illegal armed group” and “using that group” for the above-mentioned crimes, and a member as someone who “actively participates” in or “directly benefits” from the activities of an illegal armed group. Funders of illegal armed groups are considered members. While armed groups are mainly defined by their activities, commanders and members are defined by a person’s connections to the group.

The procedure also sets out the duties of the Vetting Commission: collect and compile corroborating evidence against accused candidates; scrutinise any complaints received by the ECC and referred to the commission; establish whether candidates do belong to or command illegal armed groups, based on the documents and evidence collected and; provide the required information to the ECC.

People can file an objection to a particular candidate running with either the ECC centrally or the Provincial Electoral Complaints Commissions (PECCs). These temporary bodies have to be set up a month ahead of candidate nomination (article 31). (4) Each PECC comprises three members: a man and a woman appointed by the ECC centrally and a third member appointed by the Independent Human Rights Commission of Afghanistan and approved by the president.

Nominations to stand for parliament began on 26 May. This means the PECCs should have been established by 26 April. However, it was only on 27 July, more than three months after the legal deadline, that the president finally appointed the PECCS’ 102 commissioners. The ECC spokesman told AAN this was the fault of the government, not of the ECC, as it had submitted the list of candidates well before the legal deadline.This late appointment seriously hindered the ECC’s ability to address complaints related to candidate nomination. The UN Secretary General’s report to the Security Council criticised the time lost: “As a result of the delayed appointment of commissioners, out of 680 complaints received, only 240 had been adjudicated, as of 20 August.”

The EEC’s Rohani told AAN there were two types of adjudications: two-phased, when complaints are first reviewed by a PECC or by the Vetting Commission and then reviewed and adjudicated by the ECC, and one-phased complaints which are filed directly with ECC headquarters and addressed only by it. According to the complaints procedure (available in Dari here) approved by the ECC in April, the PECC is the primary authority for addressing electoral complaints and the ECC should serve in that role only in exceptional cases. (If the political and security context at the provincial level is not appropriate for addressing them; if objections and complaints are widespread and there is a conflict of authorities; if there is a proven conflict of interest of one of the parties with a provincial commissioner; if the PECCs are not operational and; other instances decided by the ECC in consultation with the PECC.) The procedures also says that the ECC is the final authority for the adjudication of complaints and that it is authorised to “confirm, amend, correct or overturn” the PECCs’ decisions.

The chief executive of Free and Fair Election Forum of Afghanistan (FEFA), Yusuf Rashid, has criticised what he called the double standard in complaints. Only the ‘two-phased’ complaints had involved the chance to appeal – and on this basis, 11 had been re-instated. Other potential candidates, whose complaints were only reviewed by the ECC because of the late appointments of the provincial ECC officials, had had no chance to appeal.

Timeline for complaints

The section of the electoral calendar dealing with complaints lays out the following timeline:

  • 26 May to 12 June: Candidate nomination
  • 28 June: Publication of preliminary list of candidates. Actually published on 30 June
  • 28 to 30 June: Filing challenges and corrections
  • 30 June to 2 July: Addressing challenges to the preliminary list
  • 29 June to 1 August: Period for candidate withdrawal (when candidates can withdraw their nomination without losing their deposit)
  • 3 August: Publication of the final list of candidates. Actually published in the form of a report by the EEC on 11 August

The IEC’s preliminary list of 2,691 candidates (2256 male, 404 female, 22 male Kuchis, 8 female Kuchis and one Sikh) excluded 141 nominees from 25 of the 33 provinces holding elections (Ghazni’s election is delayed (see AAN’s reporting here and here). Kabul had the highest number of candidates (more than 800) and, with 73, the most exclusions. These particular disqualifications were for procedural problems. According to the candidate nomination procedure (a Dari version is available here) approved by the IEC on 14 May, to nominate themselves, people had to submit, among other documents, copies of 1,000 supporters’ tazkeras labelled with voter registration stickers. Some of the excluded candidates had submitted duplicate voter ID cards or cards from outside the constituency (ie, those running from Kabul had submitted cards from another province, for example), so were not allowed to stand.

AAN’s conversation with Rohani of the ECC, as well as the ECC report, show there were two categories of complaints about the preliminary list.

First were the complaints and objections against the IEC by 134 of the 141 disqualified candidates. They lodged these with the EEC. After reviewing these complaints, the EEC said it had re-included 102 of the candidates and affirmed the disqualifications of the remaining 31 (this number should be 32).

Second were complaints made by the public against some of the candidates on the preliminary list. These were addressed in two steps: first, these complaints were filed with the ECC which then referred them to the Vetting Commission or they were directly filed with the Vetting Commission. It announced its findings on 2 August when it recommended 25 people for disqualification. It also gave 27 people a ‘warning’ and nine people a ‘serious warning’ (Rohani said this meant there was evidence, but not enough to exclude someone, although if the ECC “completed the documents,” it could still disqualify a candidate). Seven other people received ‘advice’ (Rohani said this meant they did not have evidence against them, but warned them to be cautious anyway). The ECC rejected the rest of the complaints.

On the same day as the Vetting Commission announced its findings, the ECC issued a press release saying that the ‘excluded’, ‘warned’ and ‘advised’ candidates could lodge appeals at the ECC headquarters on 3 and 4 August. It later said that 34 candidates had lodged objections to their exclusions. A number of people who had complained to the Vetting Commission against candidates and were unhappy with its decisions also filed complaints about these decisions with the ECC.

In a second step, the ECC reviewed all the objections and complaints, as well as the preliminary decisions by the provincial ECCs and other cases to do with the preliminary list. It then communicated its legal decisions to the IEC on 11 August and announced them in a press conference and on the ECC website.

Out of 25 candidates who had emerged from these various processes as recommended for disqualification by the Vetting Commission, the EEC approved 14. It allowed the remaining 11 candidates to stand. The Vetting Commission has not published the names of these 25 people. Nor does the EEC’s report name who was subsequently allowed to stand. Yusuf Rashid, chief executive of Free and Fair Election Forum of Afghanistan (FEFA), told AAN on 22 September that the reasons behind the EEC’s final decisions were unknown. Of two candidates running from Kabul, for example, Allah Gul Mujahed was disqualified by the Vetting Commission, but the ECC downgraded this to a warning, while Mullah Tarakhel had received a warning from the Vetting Commission, but the ECC disqualified him. The reasoning behind these decisions is completely unclear.

The ECC’s report also announced that 21 other candidates had been disqualified “based on [new] legal reasons and evidence.” They had been on the Vetting Commission’s list for scrutiny, but had not been disqualified by it. Or their cases had been addressed first by the PECCs or by the ECC, centrally. The EEC report gives few details about this list but does indicate that more than 25 candidates had been under the direct scrutiny of the Vetting Commission.

We do not know how many candidates, in total, came under the scrutiny of the EEC, PEECs or Vetting Commission. However, as a result of all the various procedures, a total of 35 potential candidates were excluded from running in the election:

– 20 excluded for links to illegal armed groups (article 44 of the electoral law)

– Two excluded for failing to meet the criteria, eg because they were too young or had problems with citizenship or a criminal record (article 39)

– Four excluded because they had not provided the correct documentation (article 92). (5)

The ECC report has not specified the reasons for the exclusion of the remaining nine candidates.

A total of 45 candidates were given advice (six), warnings (31) or serious warnings (eight).

FEFA’s Rashid said that giving a warning to candidates accusing of having links with illegal armed groups made no sense because, he said, if links were proven, they should just have been disqualified. If not, they should have been included in the list, he added.

Why were only 35 candidates disqualified?

Many observers had expected many more candidates to be disqualified. Indeed, the media had reported the existence of a much longer list. For example, Pajhwok news agency said on 13 July that the government and Attorney General’s Office (AGO) had prepared dossiers detailing the crimes committed by 61 incumbent MPs who sought re-election. Their alleged crimes included “misuse of authority, land-grabbing, kidnapping, embezzlement and corruption during their recent tenure.” Pajhwok also reported a “reliable government source” saying that similar dossiers had been prepared for another 400 candidates. There was no public confirmation or rejection of these reports by either the AGO or the ECC.

In the end, only 35 candidates were disqualified and only ten of them were sitting MPs. Rohani of the ECC told AAN this was because they only had evidence against these individuals. Yet, Naim Ayubzada, head of the Transparent Election Foundation of Afghanistan (TEFA), told AAN on 23 September that “hundreds of other candidates” could have been disqualified “had the government cooperated in providing the required documents and evidence” and had the ECC not acted “conservatively” or if it had taken its job “seriously.” He said, for example, that Allah Gul Mujahed should have been excluded. Others have said that the 35 disqualified candidates did not represent the most egregious cases. Muhammad Hassan Serdash, a journalist and candidate from Faryab, for example, told AAN that of the various commanders in Faryab standing for parliament, only Sakhi Nawid, (from Gurziwan district who is affiliated with Jamiat-e Islami), had been disqualified. “Other commanders are on a par with Nawid,” Serdash told AAN, suggesting Nawid was by no means the worst of them.

ECC chairman Ariayi (who also headed the Vetting Commission) seemed to go along with all the above evaluations when he told  Ariana News he believed there were other candidates linked to illegal armed groups who had not been debarred from standing in the elections, but, he said, the ECC did not have sufficient evidence against them. He complained that the government did not provide the necessary documents and that, he said, constituted a “gap in the process.”

Muhammad Aref Hafez, deputy head of the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC), told the Wolesi Jirga that the ECC had not provided it with “convincing reasons” or given evidence for disqualifying the 35 candidates who had been disqualified. The ICOIC does not have any direct role in the process, but is required to monitor the performance of the institutions for their consistency with the constitution. Abdullah Shafayi, a member of the ICOIC, confirmed to AAN on 22 September that the ICOIC was still trying to see the documents and evidence before issuing its legal opinion on whether the process had been constitutional. He said they were looking, in particular, at whether or not the rights of the disqualified persons to stand in the election had been violated; whether or not the law (article 44) had been observed and; whether or not the disqualification had contributed to a transparent election and prevented those people tied to illegal armed groups or involved in drug trafficking from being elected. He said they would try not to undermine the electoral process, as their priority was to make sure the elections are held on schedule. He said it was a question for them why only 35 – and, indeed, why only these particular 35 – candidates had been disqualified.

Allegations of bribery against the ECC chairman

Muddying the waters yet further have been accusations of corruption against the chair of the Electoral Complaints Commission, who was also chair of the Vetting Commission Abdul Aziz Ariayi. On 26 August 2018, Kabul daily Etilaat Roz reported that it had obtained a video showing a person named Saifuddin Akbari, who identified himself as representative of ECC chair Ariayi, going to the home of the commander, Bashir Qanet, a candidate in Takhar, asking him to pay 150,000 dollars in return for removing him from the disqualified candidates’ list. In the video, the paper said, Qanet said he could not afford the amount and was only prepared to pay 60,000 dollars, but Akbari insisted on the original amount and told Qanet he had only two days to pay the amount (the appeals by the excluded candidates started on the day the video was recorded).

According to the newspaper report, Qanet told the AGO about the alleged attempted bribe and then managed to document it in coordination with the AGO. 25,000 dollars was prepared by Qanet and another 25,000 dollars by the AGO (with the serial numbers of the banknotes noted). This was paid to Akbari on a specific day. After taking the money, Akbari was arrested by police and officials from the AGO close to Qanet’s house in Takhar. He claimed he had sold his car to Qanet and that the money – 50,000 US dollars – was payment for it. Ariayi denied any involvement at all, calling on judicial agencies to probe the case “seriously” as someone had “misuse[d] my name.” (Tolonews reported that Akbari is from Badakhshan, the same province Ariayi comes from. And Ariayi himself told Ariana that they are from the same district and were “slightly acquainted.”)

The AGO confirmed on 27 August that two people had been arrested for obtaining 50,000 US dollars from a disqualified candidate. According to the Tolonews report cited above, one is the head of the Takhar police’s criminal investigation department. AGO spokesman Jamshed Rasuli confirmed to Etilaat Roz that the arrest had been made in cooperation with the disqualified candidate. He also said the detainees had admitted to having connections with people inside the ECC. The EEC chair remains in post. Rasuli said the AGO was investigating the case and that whoever had been accused, whether from inside the ECC or outside, would be interrogated and, if there was enough evidence, prosecuted by the judicial agencies. The ECC spokesman also said “Nothing can be ruled before any investigations,” but emphasised that, if true, it should not be generalised to the entire ECC. Neither spokesman, then, denied a possible ECC link to the alleged bribery. Given that the AGO has not announced its findings yet, AAN is not in a position to take the allegation to be true or an attempt by a disqualified candidate to take revenge. Nor if the attempted bribery did happen, whether the case was an isolated incident or indicative of a more widespread pattern is not known.

Closure of IEC offices

After the ECC announcement, some of the disqualified candidates and their followers organised blockades of the IEC headquarters in Kabul and nine provincial offices, in Badakhshan, Paktia, Kabul, Kunduz, Logar, Parwan, Baghlan, Samangan and Takhar, effectively stopping them working. IEC chair Gula Jan Badi Sayyad said, on 13 August, that the disqualified candidates were demanding that the IEC postpone both the announcement of the final list and the draw which determines the order of the candidates’ names on the ballot papers. He urged the disgruntled candidates to take up the matter with the ECC. The IEC chair also said that his commission would not be responsible for any delays caused by the protests. On 22 August, Habibullah Shinwari, spokesman for the Election and Transparency Watch Organisation of Afghanistan (ETWA), raised concerns about further delays at such a crucial time when the IEC had to be in full swing. (6)

The disgruntled candidates argued that the reasons for their disqualifications had either not been communicated to them or were not convincing. For example, Masuma Khawari from Samangan said she had heard about the accusation – “commanding an [illegal] armed group” – and her disqualification through the media.

Zia ul-Haq Amarkhel, another disqualified candidate and former head of the IEC secretariat who resigned (see AAN’s report here) amid controversies over the 2014 presidential election, told  the online media platform Khabarnama on 29 August that the ECC had told him, “You assisted a specific candidate in the last presidential election of Afghanistan and despite [an attempt by] the police to prevent this, you transported ballot papers to a specific area.” Amarkhel argued that, “If this is the reason for my exclusion, then the legitimacy of the president is also under question,” and with it “the legitimacy of the cabinet of the Islamic Republic of Afghanistan and of both electoral commissions the members of which have been appointed by the president.” On 26 September, President Ghani via a decree created a new post of “senior adviser to the president for public and political affairs” and appointed Amarkhel to it.

Badakhshi MP Fauzia Kufi, who along with her sister, Maryam, a sitting MP from Takhar, was disqualified for links to illegal armed groups told Khabarnama, on 3 September:

I was told I am supporting three local commanders – whose names I heard for the first time [from the EEC]. Moreover, the law mentions membership or command of, not the word ‘support’ for an armed group. [The law does mention funding.]

ECC spokesman Rohani defended all the disqualifications, saying they were “carried out within the framework of the law and regulations, and according to the authority of the ECC.” (7) He told AAN that the ECC had sent notices to the disqualified candidates in which it had explained the reason for their disqualification. He said the ECC could not publish the documents and evidence against them because this might harm the complainants and could further expose the disqualified candidates. He also said the commission was also not legally obliged to do so.

Conclusion: vetting is a high-wire act during conflict

Out of more than 2,600 potential candidates for the 20 October parliamentary elections, the ECC disqualified 35 candidates, primarily for their links to illegal armed groups. It has not published the reasons why these particular candidates were rejected, something the public might feel they have the right to know.

Its ability to address complaints against candidates was certainly hampered by the three-month delay in establishing its provincial offices. The president’s failure to make those appointments on time is indicative, at best, of the government’s lackadaisical attitude towards the elections. At worst, it shows its disregard of the laws as well as of crucial deadlines for the preparation of such a significant national event.

It should also be stressed that the provision for disqualifying candidates with links to illegal armed groups is difficult to enforce, given the number of armed groups and strong men in the country, the weakness of government institutions and the conflict. AAN is not able to judge the final 35-strong list of disqualified candidates. (According to officials of the government-run Disbandment of Illegal Armed Groups (DIAG) quoted by the Pajhwok News Agency in January 2018, there are around 500 illegal armed groups officials in the northern region, one of seven regions countrywide, alone.)

However, comparing the twenty named on that list as being members or commanders of illegal armed groups with those who only received warnings or ‘advice’ and with many other candidates, both sitting MPs and first-time nominees, it is clear that some egregious offenders have been allowed to run, well-known strongmen with links to armed groups. It is also clear that there are apparently ‘clean’ candidates – clients or relatives of powerful individuals – who will not be independent MPs, but represent the wishes of their client only. (Many state officials could also credibly be investigated for their links to illegal armed groups.)

The list of those excluded for their links to illegal armed groups has a degree of randomness about it when it comes to which candidates were disqualified, which were scrutinised but allowed to stand, and those who were never added to any list. This apparent randomness, coupled with a lack of transparency about the vetting process, has created doubts in the minds of both candidates and voters as to the actual basis of ECC and IEC decisions. This has further undermined faith in the fairness of the whole elections process.

Edited by Thomas Ruttig and Kate Clark

 

(1) Rohani also said that, if you looked at the list of the disqualified candidates, “you can find candidates affiliated with political groups which are perceived to be allied with the ruling faction, and candidates affiliated with the opposition.” Two known Hezb-e Islami commanders, Zardad Faryadi and Bashir Qanet who had nominated themselves respectively for the Kuchi constituency in Kabul and from Takhar have been disqualified, despite, Rohani said, Hezb-e Islami perceived to be allied with the presidential palace. (Zardad is a convicted war criminal (read AAN’s reporting here) living in Kabul, while Qanet is a commander in Takhar.)

(2) Article 39 of the electoral law sets out the following requirements and qualifications for candidates for both houses of parliament:

  • Shall be an Afghan citizen or have obtained citizenship of the State of Afghanistan at least ten years before the day of candidacy (Wolesi Jirga) or appointment (Meshrano Jirga)
  • Shall not have been convicted of crimes against humanity or felonies or been deprived of their civil rights by a court
  • Shall be 25 and 35 years old on the day of their candidacy or appointment for the Wolesi Jirga and the Meshrano Jirga, respectively

The article also stipulates that MPs and senators should also meet the legal requirements established for voters, but they largely duplicate what they would have to fulfil as senators or MPs, anyway.

(3) Article 44 of the electoral law imposes the following restrictions:

  • The following persons cannot nominate themselves for the elected seats mentioned in this law election before resigning from their positions: chief justice, members of the Supreme Court and other judges; Attorney General, prosecutors and professional members of the Attorney General’s Office; ministers, advisor minister, advisors to the president, deputy ministers, heads of agencies and their deputies, chairpersons and members of the independent commissions, provincial governors and their deputies, district governors, ambassadors and the staff of the country’s political missions abroad; military personnel of the Ministry of National Defense and Ministry of Interior Affairs and General Directorate of National Security and other ministries and bodies with military set-up; civil servants; temporary or permanent staff of the IEC; instructors of the governmental institutes of higher education and members of the academic cadre of the Academy of Sciences of Afghanistan. If the above-mentioned persons do not win, they may be re-appointed in accordance with the provisions of the law.
  • Persons who are commanders or members of illegal armed groups cannot participate in elections as a candidate. Their command or membership of illegal armed groups is vetted by a separate commission comprising representatives of the Ministries of National Defense and Interior Affairs, National Directorate of Security and the Independent Directorate of Local Governance and being chaired by the ECC chairperson. This Vetting Commission takes the necessary decisions. Any complaint in this regard is adjudicated by the ECC; its decisions are final.
  • If a member of elected bodies intends to nominate themselves for another elected seat, they should resign from their current seat. Members of the provincial and district councils who nominate themselves for the membership of the Meshrano Jirga or members of the Meshrano Jirga who nominate themselves for the membership of provincial or district council are an exception to this provision.
  • If an appointed member of the Meshrano Jirga intends to nominate themselves for an elected seat, they should resign from their current seat.
  • No one can nominate themselves in more than one electoral constituency or for more than one elected seat at the same time.

(4) Article 31 says that the PECCs shall be established one month before candidate registration for the purpose of addressing objections and complaints arising from negligence, violations andcrimes related to elections. The PECCs comprise three members: a man and a woman appointed by the CECC and a third appointed by the Independent Human Rights Commission of Afghanistan upon therecommendation of the Central Complaints Commission and with the approval of the president. The members should meet the following conditions: have citizenship of Afghanistan; have at least a bachelor’s degree in the field of law or jurisprudence; be competent, have a good reputation and at least five years of work experience in government or non-governmental organizations; be at least 30 years old; shall not have been convicted of crimes against humanity or felonies; shall not be a member of any political party during their incumbency in this post. The PECCs are obliged to address the objections and complaints arising from negligence, violation and identification of crimes related to elections in their relevant constituencies within a period of two weeks and report on their executions to the PECC. [emphasis added]

The ECC is obliged to report, through the mass media, to the public regarding its adjudication of the objections and complaints arising from negligence, violation and identificationof crimes related to elections.

The PECCs shallcomplete their work within one month of the announcement of the final election results and following their dissolution, their authorities are transferred to the ECC.

Article 30 of the law specifies the authorities of the ECC and PECCs as below:

  • Address objections to the list of candidates and voters, as well as to the requirements and qualifications of the candidates;
  • Address complaints arising from electoral violations, provided the complaint is filed inaccordance with the provisions of this law within the due period;
  • Issue advice, warnings and orders of corrective action to the person or organization that has committed the violation;
  • Impose cash fines, depending on the case, inaccordance with the provisions of this law;
  • Issue an order to recount votes in specific polling centres prior to the announcement of the election results;
  • Invalidate ballot papers not fulfilling the necessary requirements;
  • The ECC or PECC can remove a candidate from the final list of candidates if it is proved, based on credible evidence, that he or she was not eligible to nominate themselves according to the provisions of this law.

(5) Article 92 of the electoral law says that the ECC or PECC can remove the name of a candidate from the final list whenever it is proved by credible evidence that he or she had not been eligible in accordance with the provisions of the law.

(6) In a further development, supporters of Assadullah Sharifi, a disqualified candidate from Balkh, blocked a key highway linking Kabul to the northern Balkh province in protest against the ECC’s decision to disqualify him on 14 August. Sharifi described the decision by the IECC as politically motivated and warned that he would continue civil protest unless he is reinstated as a candidate. His protest is no longer going on.

(7) On 20 August, media reported Rohani claiming that there were “some efforts” aimed at bringing changes to the legal decisions made by the ECC or to change the law “because the decisions are not reversible, but all decisions taken are legal and all of us are obliged to abide by them.” He did not specify who was making the efforts. President Ashraf Ghani’s spokesman, Harun Chakhansuri, however, told the media on the same day that the president had made it clear that the IEC and ECC were authorised to take all decisions regarding the elections and that the government would not meddle in the process.

 

Appendix One

List of those excluded from the final list of 2018 Wolesi Jirga candidates

Number Name Constituency Decision
1 Muhebullah Uruzgan Excluded
2 Ahmad Shah Shams Uruzgan Excluded
3 Amanullah Hotaqi Uruzgan Excluded
4 Abdul Rahman Shahidani Bamyan Excluded
5 Fowzia Kufi Badakhshan Excluded
6 Muhammad Nabi Bayan Badakhshan Excluded
7 Abdul Samad Abdul Hamid Badakhshan Excluded
8 Mariam Kufi Badakhshan Excluded
9 Sayyed Jafar Naderi Baghlan Excluded
10 Asadullah Islamzoi Baghlan Excluded
11 Hayatullah Wafa Baghlan Excluded
12 Asadullah Sharifi Balkh Excluded
13 Ghulam Haidar Jilani Parwan Excluded
14 Nur Ahmad Sekandar Parwan Excluded
15 Allah Mir Paktia Excluded
16 Nawid Ibrahimkhel Kabul Excluded
17 Bashir Qanet Takhar Excluded
18 Asadullah Ayub Takhar Excluded
19 Liaqatullah Babakarkhel Khost Excluded
20 Jabar Jabarkhel Excluded
21 Masuma Khawari Samangan Excluded
22 Muhammad Asef Azemi Samangan Excluded
23 Rais Khairullah Samangan Excluded
24 Sakhi Nawid Faryab Excluded
25 Qais Hassan Kabul Excluded
26 Al Hajj Mawlawi Tarakhel Muhammadi Kabul Excluded
27 Sayyed Daud Naderi Kabul Excluded
28 Sedaqat Zahed Kabul Excluded
29 Ziaul Haq Amarkhel Kabul Excluded
30 Ehsanullah Atef Kabul Excluded
31 Sher Ali Ahmadzai Kabul (Kuchi) Excluded
32 Zardad Faryadi Kabul (Kuchi) Excluded
33 Shayesta Baz Naseri Kunduz Excluded
34 Akbar Stanekzai Logar Excluded
35 Jawid Zaman Nangarhar Excluded

Approval: the individuals included in the above table were not recognised eligible in accordance with the electoral law and thus be excluded from the final list of candidates.

The list and approval was undersigned by all five ECC members (see AAN’s reporting on their appointment and short profile here).

List of candidates who received a ‘serious warning’, a ‘warning’ or ‘advice’

Number Name Constituency Decision
1 Mir Dad Nejrabi Kapisa Serious warning
2 Abdul Baqi Takhar Serious warning
3 Ahmad Shah Ramazan Balkh Serious warning
4 Humayun Humayun Khost Serious warning
5 Muhammad Anwar Oryakhel Kabul Serious warning
6 Zakria Suda Badakhshan Serious warning
7 Mullah Ezatullah Atef Kabul Serious warning
8 Safiullah Muslim Badakhshan Serious warning
9 Fazlul Azim Zalmai Mujaddedi Badakhshan Warning
10 Abdul Wali Niazi Badakhshan Warning
11 Dr Ibrahim Malekzada Ghor Warning
12 Keramuddin Rezazada Ghor Warning
13 Khair Muhammad Timur Takhar Warning
14 Abdul Wahed Faqirzada Takhar Warning
15 Ewaz Ali Bikoghli Samangan Warning
16 Muhammad Sulaimankhel Paktika Warning
17 Qudratullah Zaki Takhar Warning
18 Bashir Ahmad Ziayi Takhar Warning
19 Sher Ahmad Akhundzada Helmand Warning
20 Alam Khan Azadi Balkh Warning
21 Muhammad Hussain Sar-e Pul Warning
22 Sayyed Ekramuddin Masumi Takhar Warning
23 Muhammad Mehdi Rasekh Maidan Wardak Warning
24 Haji Zaher Qadir Nangarhar Warning
25 Haji Hazrat Ali Nangarhar Warning
26 Muhammad Naem Lalai Hamidzai Kandahar Warning
27 Sayyed Zaher Masrur Balkh Warning
28 Abdul Hadi Jamshidi Herat Warning
29 Atta Muhammad Dehqanpur Ghor Warning
30 Allah Gul Mujahed Kabul Warning
31 Abdul Rahim Ayubi Kandahar Warning
32 Gul Murad Arab Nangahar Warning
33 Abdul Rauf Ibrahimi Kunduz Warning
34 Ahmad Behzad Kabul Warning
35 Haji Muhammad Wali Alizai Helmand Warning
36 Muhammad Ali Mohaqeq Balkh Warning
37 Baz Muhammad Almas Samangan Warning
38 Faizullah Bik Takhar Warning
39 Abbas Ibrahimzada Balkh Warning
40 Mawlawi Abdul Basit Sarem Ghor Advice
41 Qumandan Lutfullah Kabul Advice
42 Nasim Siah Khan Herat Advice
43 Qari Omid Kapisa Advice
44 Sarwar Sadeqi Daikundi Advice
45 Hamidullah Tokhi Zabul Advice

Approval: In accordance with article 30 of the electoral law, serious warning, warning and advice were issued by the Electoral Complaints Commission to the individuals included in the above table for their future improvement. If the ECC gets access to more information about them, a decision about their exclusion will be taken.

The list also includes 102 candidates who had been eliminated from the preliminary list for failing to fulfil procedural requirements, but it was concluded that they should be allowed to stand.

Appendix Two

Procedure for Vetting Candidates’ Command or Membership of  Illegal Armed Groups 

(The original Dari is available here)

Article One: Goal

This procedure is enacted for the purpose of better implementation of the provisions of paragraph two of article 44 of the electoral law.

Article Two: Scope of Application

This procedure shall be applicable to all the elected seats envisaged in the constitution.

Article Three: Abbreviations

  1. Electoral Complaints Commission:The Electoral Complaints Commission shall hereinafter in this procedure be referred to as the “Complaints Commission.”
  2. Commission for Vetting Individuals Having Membership or Command of Illegal Armed Groups: The Commission for Vetting Individuals Having Membership or Command of Illegal Armed Groups shall hereinafter in this procedure be referred to as the “Vetting Commission.”

Article Four: terminologies

The following terminologies shall have the following meanings in this procedure:

  1. Illegal Armed Groups:

Is a group of people who have an illegal armed physical presence and are involved in the spread of insecurity, perpetration of organised crimes, smuggling of drugs, usurpation of public and private properties, cooperation with the enemy, violation of human rights and other illegal instances.

  1. Command

Is a person’s act of directly or indirectly heading an illegal armed group and using that group for the crimes mentioned in paragraph one of this article.

  1. Membership

is the active inclusion of a person in an illegal armed group or directly benefitting from the activity of an illegal armed group. Funders of illegal armed groups are also considered members of these groups.

  1. Corroborating evidence

Comprises the authentic documents, evidence and information provided by credible national and international organisations, natural or legal persons, or the testimonies of individuals from the society, which are collected by the government agencies regarding a person’s membership or command of illegal armed groups and provided to the Vetting Commission.

Article Five: Structure of the Vetting Commission

  1. The Vetting Commission is comprised of the competent representatives of the Ministries of Defense, Interior Affairs, National Directorate of Security and Directorate of Local Governance, which performs the assigned tasks under the chairmanship of the Chairman of the Complaints Commission. And considering the importance of the function of this commission, its members shall not be replaced without any justified reason as long as they are working in their government positions.
  2. The Office of the Chief of Staff of the Complaints Commission has the responsibility for being the secretariat of the Vetting Commission.

Article six: Meetings of the Vetting Commission

The Vetting Commission shall hold its ordinary and extraordinary meetings in the following manner:

  1. Ordinary meetings, once a week.
  2. Extraordinary meetings may be held on the request of the chairman of the commission or on the request of two members of the Vetting Commission.
  3. The final decision shall be taken based on a majority of votes in the commission’s meetings.

Article seven: Code of Conduct of the Members of the Vetting Commission

Members of the Vetting Commission shall be obliged to observe the following principles:

  1. Be punctual to the Commission’s meetings.
  2. Keep documents presented and the discussions made in the meetings of the Vetting Commission confidential.
  3. Perform their assigned duties in a timely manner.

Article eight: Duties of the Vetting Commission:

The Vetting Commission has the following duties:

  1. Collect and compile corroborating evidence against the candidates that have command or membership of illegal armed groups.
  2. Establish the membership of candidates in illegal armed groups, in view of the documents and evidence collected.
  3. Provide the required information to the Complaints Commission.
  4. Scrutinise any complaints received from the Complaints Commission.

Article nine: Documents, Evidence, Information and Place for their Safekeeping

Documents, evidence and information provided to the commission shall meet the following criteria:

  1. The documents, evidence and information provided should prove the direct or indirect involvement of a candidate in the relevant crimes;
  2. Documents, evidence and information should be complete and should not require further technical investigation and review before they are presented to the Vetting Commission by one of the bodies that are members of the Vetting Commission;
  3. The documents, evidence and information presented to the Vetting Commission shall be the property of the Electoral Complaints Commission, but, due to the high level of their confidentiality and their importance, shall be kept, based on NDS’ [strict] confidentiality] rules for maintaining peace and stability in the country.

Article ten: Venue of Meetings

The venue for holding the official meetings of the Vetting Commission shall be the Complaints Commission headquarters. However, based on the discretion of the members of the Vetting Commission, these meetings can be held in any other proper place as well.

Article 11: Approval of the procedure

This procedure is developed on 21 June 2018 and is approved and enforced by the Vetting Commission.

End

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Thematic Category: Political Landscape