Political Landscape

Afghanistan’s 2019 Elections (3): New electoral commissioners, amendments to the electoral law


Afghanistan’s new set of election officials are sworn in by the Chief Justice at the presidential palace on 4 March. Their first job will be sorting out the parliamentary elections. At the same time, they need to prepare for the all-important presidential poll in July.

Afghanistan’s new set of election officials are sworn in by the Chief Justice at the presidential palace on 4 March. Their first job will be sorting out the parliamentary elections. At the same time, they need to prepare for the all-important presidential poll in July.

President Ashraf Ghani has appointed new commissioners and heads of secretariats for both electoral commissions, the Independent Election Commission (IEC) and the Election Complaints Commission (ECC). This follows a busy few weeks in which the election law was amended, all the old electoral commissioners were dismissed and new electoral officers voted in by the presidential candidates. The commissioners’ first job will be trying to sort out parliamentary election results for the 15 provinces which are still pending. They also have to prepare for the all-important presidential poll. AAN’s researcher Ali Yawar Adili has been scrutinising the selection of the new commissioners and amendments to the Electoral Law, asking if the changes will help Afghans get a fair presidential election in July. 

Afghanistan has a brand new set of election officials. On 4 March, seven new IEC commissioners and five EEC commissioners, plus new heads for the IEC and EEC secretariats were sworn in at the presidential palace. The ceremony, attended by the president, Chief Executive Abdullah and a several other senior officials, came after separate presidential decrees were issued on 3 March appointing the new IEC commissioners, the head of the IEC secretariat, the EEC commissioners and the head of the EEC secretariat

This completely new set of Afghanistan’s most senior election officials came after growing calls by elections observers and political parties for the commissioners in charge of the 2018 parliamentary elections to be dismissed and replaced. They were accused of misconduct and mismanagement and of being unfit to be in charge of the upcoming presidential elections. This, in turn, raised questions about how to replace the commissioners as they had not completed their terms of either three or five years. Nevertheless, there was a strong precedent to do this; electoral commissioners have seen their appointments terminated after every election by amendments to the law (for example, the commissioners overseeing the 2014 presidential elections were prematurely discharged). The same precedent has been followed this time. 

This dispatch first gives a timetable about how the voting was pushed through, detailing various controversies that arose along the way. It then gives the results with some detail about the new electoral officials (full biographies will be given in a future dispatch). It then makes a brief side move to look at the unhappiness of the dismissed commissioners before scrutinising the amendments to the electoral law. A conclusion examines what the consequences of all these changes might be. 

A voter in the 2018 parliamentary elections in Daikundi province - one of the 17 where results have been announced. (Photo: Ehsan Qaane)
A voter in the 2018 parliamentary elections in Daikundi province – one of the 17 where results have been announced. (Photo: Ehsan Qaane/2018)

The timetable of electoral law changes and the selection of new commissioners

11 February 2019 Vice-President Sarwar Danesh announced that the government, political party representatives, presidential candidates and civil society organisations had agreed on draft amendments to the 2016 Electoral Law, including the dismissal of all the old electoral commissioners. This followed four consecutive days of meetings. The consultation had not gone entirely smoothly, but change had been agreed. (1)

12 February 2019 The cabinet approved the amendments. They were endorsed by the president through a legislative decree and sent for publication in the official gazette. The new electoral law has not yet been officially published, but Second Vice-President Sarwar Danesh posted a copy of the amendments on his Facebook page on 12 February. (2)  

Also on 12 February 2019, President Ghani dismissed all 12 electoral commissioners (seven IEC and five ECC members) in a decree which said that the heads and members of the IEC and ECC were “considered dismissed” and, in order to prevent any disruption to the execution of affairs, the heads of the two commission secretariats would temporarily assume the positions of acting heads of the commissions. Following their sacking, the Attorney General’s Office banned all 12 electoral commissioners from travelling out of the country. Its statement said the AGO was investigating accusations that they had abused their authority.

The same 12 February 2019 decree also called on the 72 political parties registered with the Ministry of Justice and election-related civil society organisations to present eligible candidate for the commissions to the president within seven days of 17 February 2019 (article 12 of the amended electoral law). This call was repeated by the president’s chief of staff office on 14 February 2019. The office asked parties to put forward one candidate each and civil society organisations 15 candidates in total, at least five of whom should be women. With the names should be presented to the Government Information and Media Centre full biographies of the candidates, copies of education documents, tazkeras (IDs), details of work experience, three new photos and a confirmation from the Ministry of Justice that they are not members of a political party. (3)

21 February 2019 The civil society organisations introduced 15 candidates, including five women. (4) From the political parties, 69 candidates were submitted, including nine women, meaning that most, but not all parties made use of the invitation. This brought the total of candidates to 84, according to presidential spokesman Harun Chakhansuri, quoted in the Afghan media. Later, the list numbered 81 candidates; it is not clear when and why this decrease happened or whether the original figure was wrong.

26 February 2019 The president’s office announced that the vote would take place the following day. 

Later on 26 February 2019 the president’s office announced a delay in the vote. Some of the candidates were travelling, it said, and others needed more time to prepare. The delay was forced by threats of a boycott by the other presidential candidates. Their Council for the Collaboration of Presidential Candidates  cited three reasons why the vote had to be postponed: 

  • Paragraph two of article 13 of the amended law provides that all presidential candidates should be present to complete the quorum for voting, but the list of candidates published by the president’s office showed that four out of the 18 presidential candidates (AAN background about them and their running-mates here) would be absent: two were travelling (Muhammad Hanif Atmar to the United Arab Emirates and Abdul Latif Pedram to Tajikistan); one would not participate (Sayyed Nurullah, no reason cited by the president’s office); and one (Haji Muhammad Ibrahim Alekozai) had not responded when called;
  • The procedure for voting should be approved by all the presidential candidates. However, they had learned that the Palace had approved the procedure without consulting them and been informed that the vote would take place in the palace the following day; 
  • They had unsuccessfully tried for several consecutive days to get the names and biographies of the 81 candidates. 

1 March 2019 17 out of the 18 presidential candidates gathered to vote, after first hearing the 81 candidates give three-minute presentations. Proceedings were broadcast live. The 18thpresidential candidate, Sayyed Nurullah Jalili, was not present. His supporters’ Facebook page explained on 4 March that his team was against the dismissal of the electoral commissioners without nullifying the parliamentary election results and also that the voting for the new commissioners should have taken place in the IEC offices, not the presidential palace.  

The forced delay, but only by one day and despite not all presidential candidates being present, indicates how it may have been the presidential palace pushing the process of getting new electoral officers forward. This was achieved despite lingering unhappiness from other candidates who believe there should have been prior consultations and approval of how the vote was to be carried out. 

3 March 2019 President Ghani officially appointed 14 people from among the most popular candidates. 

4 March 2019 The chief justice swore the new commissioners and heads of secretariats in. The IEC and ECC should now elect their administrative board (chair, deputy chair and secretary), which, a deputy spokesman for the IEC, Zabihullah Sadat told AAN, will happen today, Tuesday 5 March 2019

The tables below show the new IEC and EEC commissioners and heads of the two secretariats, using information drawn from the president’s decrees, the list of political parties on the Ministry of Justice’s website, the list of nominees and the election results.

New IEC members and head of secretariat:

NoNameIntroduced byEthnicityEducation ProvinceVotesTerm
1.Sayyed Esmatullah MallHezb-e Ejma-ye Roshangaran-e Milli Afghanistan led by Muhammad Sabur FormuliPashtun SadatBachelor’s in EngineeringBalkh9Five years
2. Mawlana Muhammad AbdullahElection-related CSOsTajikBachelor’s in LawPanjshir9
3.Owrang ZibHezb-e Wahdat-e Milli Afghanistan-led by Engineer Abdul Rahim SalarzaiPashtunBachelor’s in AgriculturePaktia8
4. Muhammad Hanif DaneshyarHezb-e Ensejam-e Melli Afghanistan led by Dr Sadeq ModabberHazaraBachelor’s in philosophy and sociologyGhazni 
5.Musafer QoqandiHezb-e Etidal-e Melli led by Muhammad JamilUzbekBachelor’s in social scienceFaryab8Three years
6.Hawa Alam NuristaniJabha-e Nejat-e Melli Afghanistan led by Sebghatullah MujaddediPashtunBachelor’s in LawNuristan8
7.Rahima ZarifiElection-related civil society organizationsTajikBachelor’s in Bussiness AdministrationBalkh 
Head of IEC secretariat
Habibull Rahman NangElection-related Civil Scoiety OrganizationsPashtunMedical doctorLaghman8 

ECC members and head of secretariat 

NoNameIntroduced byEthnicityEducation ProvinceVotesTerm 
1.Muhammad Qasem ElyasiHezb-e Harakat-e Islami Mutahed Afghanistan led by Abul Hassuin YaserHazaraPhD in Philosophy Ghazni8Five years
2.Zohra Bayan ShinwariHezb-e Solh-e Melli Islami Afghanistan led by ShahPashtunBachelor’s in lawParwan7
3.Mowlawi Din Muhammad AzemiJamiat-e Islami Afghanistan led by Salahuddin RabbaniTajikMaster’s in Criminal LawGhor7
4.Muhammad Yunes TughraJombesh-e Melli Islami Afghanistan led by General Abdul Rashid DostumUzbekMaster’s in administrationFaryab8Three years
 5Sayyed Qutbuddin RoydarHezb-e Harakat-e Mardomi Afghanistan led by Sediqullah FahimPashtunBachelor’s in ShariaKapisa7
ECC secretariat 
6.Chaman Shah EtemadiHezb-e Wahdat-e Islami-e Afghanistan led by Muhammad Karim KhaliliHazaraBachelor’s in Religious EducationGhazni8 

It can be seen that the new commissioners comprise six Pashtuns, three Tajiks, three Hazaras and two Uzbeks, and that of the twelve, three are women – the minimum needed to fulfil the requirements of the newly-amended electoral law. A separate piece will detail the background of the new commissioners.

There were two other nominees among the most popular 14 candidates who did not find a place on the commissions: 1) Giti (only one name given), a Tajik from Kapisa province with a bachelor degree in law, who had been introduced by the National Congress Party of Afghanistan led by Abdul Latif Pedram and; 2) Muhammad Zaker Zaki, a Hazara from Samangan province with a master’s degree in agriculture who had been introduced by Hezb-e Wahdat-e Islami-e Mardom Afghanistan led by Muhammad Mohaqeq. Both obtained seven votes. Latif Pedram wrote on his Facebook that he had learned from ‘sources’ that Giti had not been appointed because of her age. He said she would have completed 35 years of age in the next 15 days. The other candidate with seven votes, Zaki, might have been dropped in favour of Mawlawi Din Muhammad Azemi to ensure ethnic balance in the commissions. 

Controversies around the dismissal of the commissioners

The old IEC and ECC commissioners issued a joint statement on 12 February criticising their sacking by presidential decree as “a political, not legal, decision.” They added that “by this action, the government seeks to postpone the presidential elections – which the Afghan public want to be held on schedule – and cling on to power.” They predicted that, under these circumstances, “the presidential elections will not be held on 20 July 2019.” The old commissioners also accused the government of wanting to put “their specific people” in the commissions and “engineer the upcoming elections and the announcement of the results of the Wolesi Jirga elections in the remaining constituencies.” (The final results for 15 of the 34 provinces have not been published yet.) They also said they were ready to clarify these things in a media debate with the leaders of the National Unity Government.

A day before their dismissal, on 11 February, the old IEC members had objected also to the amending of the electoral law. They issued a statement saying that the commissioners had only been informed about the government’s plans through the media. Given that the president and chief executive are among the candidates, they said that amendments to the electoral law by the government amounted to nothing more than “the manipulation of the upcoming election process” which, they said, would “move the country into crisis.” The old IEC said it had already referred the issue of how to amend the electoral law to the legal institutions, including the Supreme Court and the Commission for Overseeing the Implementation of the Constitution, so they could share their legal opinions with the IEC and other bodies seeking to amend the electoral law at that juncture (see AAN’s previous report). 

The two acting heads of the commissions,– Ahmad Shah Zamanzai at the IEC and Muhammad Ali Setegh at the EEC – issued a joint statement two days later, on 13 February, insisting that “the operations of the commissions will continue normally” and announcing that they would be finalising the remaining results of the October 2018 parliamentary elections and addressing any complaints. These two men had been the heads of their respective secretariats and were moved by the president to temporarily lead their organisations when he sacked the old commissioners. The move was criticised by election observers such as Habibullah Shinwari, programme manager of the Election and Transparency Watch Organisation of Afghanistan (ETWA). He told the media that the same number of accusations against the IEC and ECC commissioners were levelled against those two officials. “We call on the Attorney General’s Office,” he said, “to prosecute [them].” 

Earlier, on 6 December 2018, the ECC in its decision to nullify the Kabul vote had also called for the dismissal of the head of the IEC secretariat Ahmad Shah Zamanzai, along with his deputy, Abdul Aziz Samim, the former head of the IEC’s Kabul office, Awwal ul-Rahman Rudwal, the head of IEC field operations, Zmarai Qalamyar, and the head of the IEC IT department, Sayyed Ibrahim Sadat for “mismanagement, violation of laws, regulations and procedures of the electoral commissions and failure to exercise legal authorities and obligations on a timely basis, which led to widespread electoral violations and crimes” (see AAN’s previous reporting here).

A detailed look at the amendments to the Electoral Law

The following subsections deal with some of the major changes to the Electoral Law, as well as briefly mentioning the smaller ones: 

a) The selection mechanism

There is a major change to the mechanism for the appointment of the electoral commissioners and heads of the IEC and ECC secretariats. The amended 2016 electoral law (see AAN background here and here) provided for a selection committee comprising five people.Such a committee was first introduced in 2013, ahead of the 2014 presidential elections, as a way to limit the influence of the president on the appointment of commissioners. The committee was tasked with calling for applications, vetting and selecting qualified candidates based on criteria specified in the law, and presenting shortlists of candidates for the IEC and the ECC to the president for his final selection.This selection committee has now been removed. 

Instead, the new law (article 13) gives registered political parties and election-related civil society organisations a role in introducing candidates in a first round of nominations (as described above). The nominee should not be a member of any party, and the Ministry of Justice has the authority to verify this. Among the 15 civil society nominees, there must be at least five women; there is no women’s quota for the party nominees. 

In the second round, the president appoints members of the IEC and ECC and the heads of the secretariats from among those nominees unless he or she is also a presidential candidate. In that case, all the presidential candidates vote on the nominees. Each has 14 votes, equivalent to the total seats in the IEC and EEC plus the two heads of secretariat. The president then appoints the seven most-voted for candidates as members of the IEC, taking into account the ethnic and gender composition – there must be at least two women (Art. 13:5). He also appoints the five most-voted for people with higher education in the law and jurisprudence to the ECC, again taking into consideration the gender and ethnic balance – there should be at least one woman among them. The president also appoints the heads of the IEC (article 22.2) and ECC (article 32.2) secretariats. This puts them on a par with the IEC and ECC members. (4) 

If the 14 people voted for by the candidates do not reflect an ethnic and gender balance, the president should compensate for this from among the most-voted for people. If there are equal votes between two or more people, the nominee the president has voted for should be appointed.

Another noteworthy change is that the government, in an understanding with the United Nations, can appoint two international election specialists as non-voting members of the IEC for the purpose of “further transparency in the election process.” There was a similar provision for this for the ECC in the 2016 electoral law, which has been retained, and now expanded to cover the IEC also. In practice, the government did not appoint any international members to the ECC for the 2018 elections. It is not clear if it will do it this time for either commission. 

b) Use of technology

Four paragraphs (two, three, four and five) have been added to article 19 of the 2016 electoral law specifying the duties and authorities of the IEC. Paragraph two says: the IEC is duty-bound to take measures so that all the election phases, including voter registration and verification, are conducted using electronic systems and biometric technology in a safe way, in order to “accelerate the election process and ensure transparency.” 

Paragraph three says that the [feasibility of the] system should be technically assessed by credible national and international authorities before implementation. Paragraphs four calls on the relevant ministries, government agencies and non-government organisations to comprehensively cooperate with the IEC regarding the use of electronic systems and biometric technology. Paragraph five foresees the possibility of Memorandums of Understanding between the IEC and ministries, government agencies and non-government organisations on this issue.

There have been several rounds of efforts pushing for the introduction of advanced technology in elections in Afghanistan. For the 2018 parliamentary elections, the IEC failed to procure such technology and thus the IEC was forced to stick with manual voter registration. (See AAN analysis here). Biometric devices for voter verification on election day were introduced at the last minute, but failed to ensure the safety of voter lists and were one factor excluding some registered voters trying to exercise their franchise (see AAN’s analysis here). 

The current amendments seem to have been made as a result of a new push by the political parties in particular to have fresh voter registration based on biometric fingerprints (all ten fingers) ahead of the presidential elections (see AAN reporting here). This use of advanced technology has now been incorporated into the law, but its feasibility in all phases in the run-up to and during the 20 July 2019 election is far from certain; for one thing, time is pressing. 

c) Lowering educational requirements for district and village council election nominees

For candidates for district councils, education requirements have been lowered. According to article 40 of the 2016 electoral law, they had to have had at least 12thgrade education, but now need to be able “at least to read and write.” For the village councils, literacy was already required in the 2016 law. 

Civil servants running for elected seats, who had been required to resign before registering as candidates at any level, are now exempted from doing so when competing in district and village council elections (article 44.7). They must now resign only if they are elected. However, they need to take leave for the time of their election campaign. 

The 2016 electoral law stipulated that at least 25 per cent of the seats of each district and village council should be allocated to female candidates. A stipulation has now been added that if there is not a sufficient number of female candidates to fill the seats allocated to women, these seats should remain vacant and the IEC should hold new elections in that constituency as soon as possible to fill the vacant seats. (6)

In a separate step, the cabinet’s law committee headed by Second Vice-President Danesh approved amendments to the law governing all local councils, provincial and, for the first time, district and village. This was announced by Danesh’ office on 24 February 2019. These particular new amendments, which still need to be approved by the cabinet, specify the duties and authorities of the lower-level local councils which, so far, have never been elected. (An attempt to hold district council elections simultaneously with the October 2018 parliamentary elections failed and had to be postponed. The reason was a lack of candidates in 337 out of Afghanistan’s 387 districts (see AAN’s previous analysis here). 

d) Special court

These amendments abolished the ECC’s final say in two specific situations: 1) when the ECC removes a candidate from the candidates list, ie before the election and 2) when the ECC nullifies the votes of a particular polling centre or a constituency. The amendments say that if the IEC rejects an ECC decision in the above-mentioned cases, a joint commission comprising an equal number of members from both commissions should be formed to resolve the disagreement. Its decision will be final. If the joint commission fails to resolve the dispute, the case will be referred to the Supreme Court, which should form a special court in Kabul or the province concerned for this purpose as soon as possible, within the framework of the electoral calendar. Then, its decision will be final. The IEC and ECC are required to cooperate with the court. 

It seems that the two exceptions have been made based on experiences in the October 2018 parliamentary elections. The ECC disqualified 35 candidates (AAN analysis here) and also nullified the Kabul vote. The nullification of the Kabul vote was rejected by the IEC (see AAN reporting here). The new amendment seems to ensure that the ECC alone does not have the final say in decisions which have far-reaching consequences.  

Paragraphs four and five of article 94 of the 2016 law stipulated that if the number of votes cast in a polling centre is higher than the number of voters on the voter list, all votes should be invalidated and the IEC should hold new elections. The new law expands this to also include polling stations and gives a deadline; the new elections must be held within seven days. Similarly, paragraph five of the article now says that if the principles of fair, secret and direct elections in a constituency are jeopardised, the ECC may invalidate the votes and the IEC must hold new elections there within 15 days (it was seven days in the previous law). When the ECC nullified the 2018 Kabul vote, many considered it impossible to hold a new election in Kabul within seven days. 

e) Change of Electoral system

The amendments make no mention of Afghanistan’s very controversial electoral system, the Single-Non-Transferable Vote (SNTV) – in SNTV, voters select a candidate rather than a party and do so in provincial-wide constituencies. However, article two of the legislative decree that endorsed the amendments does say: 

The next elections shall be held based on the Multi-Dimensional Representation (MDR) electoral system; the IEC, in cooperation with the political parties registered with the Ministry of Justice, and election-related civil society organisations, shall adopt necessary measures and present a proposal, including amendments to the electoral law, within one month of the IEC beginning its work, to the cabinet for its approval.

Multi-Dimensional Representation is a type of proportional system applied in a multi-member constituency (mainly provinces) which mainly favours list-based candidatesover individual candidates. The inclusion of MDR into the decree seems to be a result of the campaign by the political parties, which have been calling for getting rid of SNTV since February 2018. It an old demand; the registered political parties in 2005 had also wanted to have a proportional system before the parliamentary elections that year – see background). The demand to strengthen the role of political parties in the electoral system is based on a proposal by the Special Electoral Reform Commission (SERC) that was established by the government in 2015 to come up with proposals for electoral reform. In December 2015, the SERC mainly suggested shifting from SNTV to MDR (see AAN reporting here). If the system is changed before the 20 July elections, the provincial and district council elections would use MDR. However, this would not affect the presidential elections, where the country, as a whole, is one constituency. 

f) Miscellaneous changes and additions: 

* IEC members now only require work experience of five (previously ten, seven and five years respectively for those with bachelor’s and master’s degrees and PhDs) years in a managerial position (article 12). Specifically-required fields of studies (law, sharia, political sciences, management, sociology, economy or other related fields) have been removed. An addition is that candidates without multiple citizenships and with election-related experience will be preferred.

* The IEC will have only one deputy and one secretary (article 14.1) in future. This seems to aim at curtailing the commissioners’ interference in the operations of the secretariat. 

* IEC authorities (article 19): the IEC can no longer amend relevant regulations and procedures after the publication of the electoral calendar.

* The IEC chair’s duties and authorities (21) no longer include supervising the implementation of the IEC budget and supervising and evaluating the activities of the secretariat.

* The new law specifies a two-year term for the ECC chair and a one year-term for the deputy and secretary, who should be elected by the ECC members in “a free, secret and direct vote” within two days of his or her appointment (article 29). 

* Objections to the preliminary list of the candidates should be filed with the ECC within three working days (previously, two weeks) of the publication of the list (article 74.2)

* The rights of observers and agents have been more clearly specified and a new stipulation says that if agents and observers are not present during the count, the polling centre manager should proceed with it, and record the agents and observers’ absence in the journal. In this case, the votes of that polling station will be valid only if there are no complaints. 

* The polling centre manager should prepare at least ten (previously, five) copies of the results sheets. The extra five copies are to be given to representatives of the election observers and media organisations (article 85.3). 

* Accountability of the IEC: the IEC should report on all the ‘electoral processes’ to the public through the mass media before and after the elections, and before and after the announcement of the preliminary and final election results (article 89.2). (Electoral processes’ now also include the IEC budget). Newly-added paragraph two stipulates that the IEC should submit its annual report to the joint session of the administrative boards of the two houses of the parliament, attended by the president, vice-presidents, head and members of the Supreme Court, the attorney general, head of the Independent Human Rights Commission and the Independent Commission for Overseeing the Implementation of the Constitution.

* There is a new deadline for the establishment of Provincial Complaints Commissions, namely one month before voter registration (new) and candidate registration (article 31.1). 

* Recruitment to the IEC and ECC: the procedure for recruiting permanent staff to both the IEC and ECC (articles 23: 1 and 33.1) should be jointly organised by the IEC and the Civil Service Commission and recruitment and should be conducted through open competition. This brings the recruitment to the IEC and ECC under overall civil service regulations. The stipulation to recruit temporary staff for the IEC and ECC (articles 23.2 and article 33.2) from among existing civil servants has been removed. This was done previously in order to cut costs. The amendments increase the IEC’s control over its staff. 

* Security of election material: paragraph three of article seven adds the responsibility for security forces assigned to secure the transportation of electoral material to the IEC offices and polling centres.

* Cooperation between the IEC and government and non-government organisations: paragraph three of article nine says that the IEC and ECC are duty-bound to cooperate with and coordinate between relevant institutions for the purpose of holding transparent and fair elections.

* Emphasis on the independence of the IEC members: the newly-added paragraph three of article 18 requires IEC members to perform their duties independent of any outside influence. 

* Challenges to preliminary results: the newly-added paragraph seven of article 91 says that candidate or their representative can file objections or complaints with the ECC and this must be done within seven days of the announcement of the preliminary results. This provision is specific to objections to the preliminary results and the timeframe is, in general, longer than elsewhere, eg objections to the preliminary list of candidates must be made within two days of its publication (paragraph one of the same article). 

Kabuli voters queuing to cast their votes in the 2018 parliamentary elections. The EEC annulled the vote, citing corruption and mismanagement. The IEC refused its decision. That impasse lies behind some of the changes to the Electoral Law. Results in Kabul province, four months on, are still pending. (Photo: Ali Yawar Adili/2018)

Conclusion: Further uncertainties 

The changes outlined above amended the 2016 electoral law, which itself was passed through a legislative decree following amendments to the 2013 law which had governed the 2014 presidential election. It has now become common practice that an electoral law is not valid for more than one election cycle. The constant need for changes and amendments indicate that previous legislation was far from perfect. Often, crucial issues were left unaddressed because of controversies over the content or disputes between presidency and parliament over procedure (earlier AAN analysis here). Amendments have also often been triggered by the mismanagement of earlier elections and to allow a change of faces in the election management bodies – without tackling the underlying legal problems. This approach to electoral reform has not been effective in the past and it is not clear it will work this time. 

The amendments to the electoral law and appointment of the new commissioners were carried out relatively quickly compared with the spun-out process after the 2014 presidential elections. This might be because of the high stakes tied to the presidential elections and that no one wanted to be blamed for any delay. 

The IEC and EEC will now need to start wrapping up the October 2018 parliamentary elections. It is worth mentioning that three of the ECC members will adjudicate the results of elections in which they were candidates. As to the coming presidential elections, the changes to the commissioners and the amendments to the law have already affected preparations. According to the electoral calendar (see it annexed to AAN’s previous reporting here), a voter registration update should be conducted from 1 to 20 March (and in Ghazni province from 1 to 31 March; see AAN’s previous reports here and here); voters list should be displayed publicly for review and correction from 1 to 31 March; candidate nomination for provincial and district councils as well as for Wolesi Jirga elections in Ghazni should be carried out from 1 to 15 March and; presidential candidates should be vetted from 5 February to 22 March. All these activities will not be conducted within their respective timeframe and will have to be rescheduled.

Meanwhile, the new commissioners will need to clarify two major issues: first, whether or not they will apply the MDR system – referred to in the presidential decree – in the upcoming provincial and district council elections (if they are held together with the presidential elections on 20 July, as previously announced). Second, the IEC should arrange for a technical assessment on how advanced and hopefully fraud-mitigating technology could be used in the coming elections and decide whether or not a full use of such technology is feasible within the given timeframe. Both of these provisions – concerning the MDR system and use of technology – are too complicated to implement in the less than five months remaining to elections day. Even so, the political parties have already said, in a statement on 14 February 2019, that a change from SNTV into the ‘agreed-upon’ MDR was their “uncompromisable demand,” and that the provincial and district council elections had to be conducted using MDR. On the other hand, Vice-President Danesh, just yesterday (4 March) raised what he called “the problems related to the use of technology in all phases of the elections as stipulated in the amendments to the electoral law… and applying MDR” in a meeting with the special representative of UN Secretary, General Tadamichi Yamamoto. 

The call for a technical assessment of any new technology seems to be a loophole intentional embedded into the law, ie if the assessment fails, it will not need to be used. However, failure to implement ‘advanced technology’ in the upcoming elections might well provoke the political parties to complain again. 

Edited by Thomas Ruttig and Kate Clark

(1) There were, in fact, disagreements between the government and political parties over the amendments. For instance, on 9 February, a joint committee of representatives of all presidential tickets except President Ghani’s declared in a statement that the Council for the Collaboration of Presidential Candidates had rejected draft amendments presented to them by the Palace on 8 February. The Council proposed its own set of amendments. They included retaining the selection committee for shortlisting applicants for the position of electoral commissioners but changing its members.

The initial amendments by the government had abolished the selection committee for electoral commissioners and instead asked registered political parties and election-related civil society organisations to introduce 15 candidates each for the two electoral commissions. From this list, the president – in consultation with the chief justice, speakers of the two houses of the parliament, attorney general, heads of the commission for overseeing the implementation of the constitution and the Afghanistan Independent Human Rights Commission, as well as the heads of political parties and civil society organisations – would appoint seven of them as IEC members and five ECC members). 

The committee’s proposals also included: cancelling the existing voter list and preparing a new one using biometric technology only and; using technology in the presidential elections (without specifying whether this means they want electronic voting) (see here). 

(2) Article four [of the amendments] says: 

This amendment, addition and removal shall be effective from the date of endorsement and published in the official gazette. 

(3) The elections-related civil society organisations issued a notice on 14 February asking applicants to send their documents to their email before noon of 17 February 2019. It said that the application and documents sent after the specified date and time would not be accepted. 

(4) The civil society organisations list includes:

  1. Pohanwal Ustad Nazari
  2. Sughra Sadat
  3. Zabih Barakzai
  4. Mawlana Muhammad Abdullah
  5. Muqadasa Attalwala
  6. Habib ul-Rahman Nang
  7. Basir Adel
  8. Din Muhammad Shekib
  9. Gul Ahmad Madadzai
  10. Pallosha Fazli
  11. Muhammad Shoib Shahir
  12. Abdullah Ahmadi
  13. Khaled Orya
  14. Farida Nekzad
  15. Rahima Zarifi

The members of the Selection Commission are: Khalil Raufi, Roshan Sirran, Mubinullah Aimaq, Habibullah Shinwari and Munizha Ramuzi 

(The list of political party nominees has not yet been published officially, but obtained from observers informally, so there is, as yet no URL)

(5) The duties of the two secretariats have been more clearly defined: 

Duties of the IEC secretariat: previous law (article 22.4) read that the secretariat should carry out its duties in accordance with the provisions of the law and the procedures adopted by the commissioners and shall report to the commissioners. These duties have now been fleshed out as below: Preparing plans, regulations and procedures  and presenting them to the commission for approval; preparing the electoral calendar and presenting it to the commission for approval; prepare candidate’s list in relevant elections and voter list and presenting them to the commission for certification; determining voter registration, polling and vote counting centres and presenting them to the IEC for certification; planning civic education and public outreach campaigns at the country level; training and building the capacity of permanent and temporary polling staff regarding the use of information technology and biometrics; Implement operational, administered, budgetary and managerial plans of elections; impartial, lawful, professional and timely oversight of provincial offices and reporting it to the commission; Submit report to the commission regarding implementation of phases of electoral calendar and publishing it through media after approval by the commission; performing other duties in accordance with the provisions of this law, relevant laws and procedures; reporting to the commission. 

Duties of the ECC secretariat: it carries out its duties according to provisions of this law, other relevant laws and procedures (article 32.3) (previous law said in accordance to a procedure approved by the commissioners).

(6) The constitution stipulates that, on average, at least two women from each province should be elected to the Wolesi Jirga; that is, at least 64 out 249 seats, which is a little over 25 per cent (art 83.6). Electoral laws also allocated seats for women in the provincial councils: in the 2013 electoral law this was “at least 20 per cent.” The 2016 law increased the provincial council allocation to “at least 25 per cent” (art 58.2), as it had been in an earlier version of the law, and also expanded this 25 per cent quota to district councils (art 61.2) and village councils (art 64.2). (See AAN reporting here.) 

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Thematic Category: Political Landscape