Political Landscape

Afghanistan’s Incomplete New Electoral Law: Changes and controversies


During the previous elections in Afghanistan, the IEC's temporary electoral staff was hired from the open job market through a process of staggered recruitment. In the next election, according to the new electoral law, the temporary staff will be drawn from among the government's teachers, professors and other employees. Picture: Martine van Bijlert, 2014.

During the previous elections in Afghanistan, the IEC's temporary electoral staff was hired from the open job market through a process of staggered recruitment. In the next election, according to the new electoral law, the temporary staff will be drawn from among the government's teachers, professors and other employees. Picture: Martine van Bijlert, 2014.

Afghanistan’s new electoral law has come into force, which means that the requirement of electoral reform ahead of the next elections has – at least nominally – been met. AAN’s Ali Yawar Adili and Martine van Bijlert discuss the main features of the new law and note that the most controversial and complicated changes have been passed on to the Independent Election Commission to decide on. These include, most prominently, an instruction to decrease the size of the electoral constituencies for the parliamentary and provincial council elections, which could usher in an overhaul of the electoral system. This will be a politically fraught exercise, which will pave the way for a new round of bickering and delay. It also threatens to drag the newly established commission into political controversy.

In September 2016, the government finally managed to agree on a new electoral law, and, in November 2016, the president appointed and inaugurated a new Independent Election Commission (IEC) and Electoral Complaints Commission (ECC). The law was passed by presidential decree, based on a ruling by the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC), which ruled that, in this case, the president did not need to go through parliament. The ICOIC based its ruling on a different interpretation than the parliament had previously arrived at of an article in the constitution which prohibits the parliament from discussing the electoral law in the last year of its session (for details see previous AAN reporting here).  The new law combines the two main laws that previously governed the electoral process and bodies: the Electoral Law and the Law on the Structures, Authorities and Duties of the Electoral Bodies (or Structure Law, for short). (1) The new law – simply titled ‘Election Law’ – replaces earlier legislative decrees that were issued by President Ashraf Ghani (but not enforced, as they had not been passed by parliament), as well as the two electoral laws that were signed by former president Karzai in 2013, ahead of the 2014 presidential election. The most important changes are discussed below (the full text of the new electoral law, in Dari, can be found here).

Changing the electoral constituencies

Potentially, the most important change in the new law is found in article 35. This article instructs the newly appointed Independent Election Commission (IEC) to “determine the Wolesi Jirga and provincial council electoral constituencies and to divide them into smaller constituencies.” It does not stipulate whether the constituencies should be multi-member or single-member. The decree that endorsed the law further instructs the IEC to conduct a technical study within three months of its establishment on the “better implementation” of article 35 (the study must therefore be finalised by late February, as the new IEC and ECC were sworn in on 22 November 2016). It is unclear what happens after that. The decree states that the cabinet will “assess the report and take a decision accordingly,” but does not specify whether it can modify the IEC’s proposal on the redrawing of the electoral constituencies, a move which, in any case, would reopen the discussions that had bogged down the finalisation of the law from the beginning.

Article 35 is a watered-down version of the ongoing attempts to replace the current electoral system (SNTV, or single non-transferable vote) with a first-past-the-post, single-member constituency system. Such a change would simplify the vote and make the outcome easier to understand for voters, but would also introduce a ‘winner takes all’ system in each constituency.

The Special Electoral Reform Commission (SERC), the commission that was tasked in 2015 by the government to come up with proposals for electoral reform, had been unanimous in their desire to change the SNTV system, but had had trouble agreeing on what should replace it. After considering several possible alternatives, the SERC developed a Multi-Dimensional Representation (MDR) system with multi-member constituencies, which it presented to the government in late 2015. (2) Two dissenting boycotting SERC members presented their own favoured system to the government, which was the first-past-the-post system that the cabinet tried to include in the current law (but failed to reach a consensus on). Opponents of the single-member constituencies fear that the system could fatally split their voter base and/or allow representatives in certain areas to be elected with very small numbers of votes (which is currently already the case in some insecure provinces). They worry that the IEC may be pressured to not only decrease the size of the electoral constituencies, but to also make them single-member.

Apart from raising the stakes of the competition in every single constituency (given that only one person can win), a change to single-member constituencies will also complicate the issue of the women’s quota. As reiterated in article 35 of the new electoral law, the IEC needs to observe article 83 of the constitution (paragraphs 4 and 6), which states that the Wolesi Jirga, apart from not exceeding 250 individuals, should be proportionate to the population of each constituency, and should include, on average, two women from each province. In a single-member constituency system, this would involve different constituencies for the male and female seats (as there are less seats for the women to compete over). This could possibly result in separate elections with separate ballots for male and female candidates, which would be a significant setback for women, particularly for the female politicians who aim to get elected on their own merit, by receiving enough votes vis-à-vis their male counterparts to win regardless of a quota.

The issue of the electoral system risks becoming polarised. Proponents of the different options keep a close eye on how they believe the changes might impact the relative balance of power in parliament. Particular concerns include the parliament’s ethnic make-up, its factional and geographical representation, whether the changes strengthen political parties or not, and what they mean for the women’s quota. In this climate of heightened suspicions, it will be difficult for the IEC to come up with a proposal that can unite the different sides, address the various concerns and not complicate election procedures further.

If the IEC and/or the cabinet fail to come to an agreement on a new electoral system, they may choose to retain the existing STNV system. Despite its drawbacks – large numbers of candidates, narrow margins between winners and losers, high percentages of ‘wasted votes’, and a fragmented parliament – SNTV is a known quantity. As we have seen so far, any change to the system is likely to affect the equation regarding who might benefit, and will draw opposition from those who believe they might lose out.

Linking voters to polling centres

Articles 6 and 8 of the new law describe a system of registration and voting that includes the development of voters’ lists and a database in which voters are, for the first time, linked to specific polling centres:

Article 6.1-6: The person eligible to vote has to personally appear at the polling centre, and register his/her name in the voter’s list based on the citizenship Tazkera (National ID) or [other] document specified by the [Independent Election] Commission for the verification of his/her identity. No person can register his/her name more than once in the voter’s list. The voter is obliged to vote at the polling centre where his/her name has already been registered in the voters’ list of that polling centre. To get a ballot paper, a voter is obliged to present the citizenship Tazkera or [other] document specified by the Commission for the verification of his/her identity. Every voter has the right to one vote and can use it directly in favour of his/her favourite candidate. In case a voter may need guidance to find his/her candidate of choice, he/she can seek the help of a person he/she trusts.

Article 8: The Commission is obliged to prepare the voters’ list by polling centre and shall link it to the Commission’s national database.

At the moment Afghanistan has no voter list system. Although there are databases with information gathered during several rounds of ‘voter registration’ ahead of previous elections, they are not in any usable way linked to the voter cards that have been distributed, nor do they link voters to polling centres. During the ‘registration,’ the emphasis has been on the distribution of voter cards, rather than on the establishment of any kind of voter database. This has resulted in massive over-registration: a total of 21 million voter cards have been distributed throughout the various registration and top-up exercises, for an estimated maximum total voting population of 15 million people (for more details, see here). Many cards were given without ID documents being shown – to accommodate voters who did not have documents – or without the voters present (many people, for instance, took advantage of the leniency shown to female voters by collecting large numbers of cards “for the women of the family,” simply by showing up with long lists of female names).

The technicalities of the new regulation have been left to the IEC. The new law does not specify whether the existing voter cards will be invalidated or whether new voter cards will be issued. However, the wording of the law strongly suggests that there will need to be some form of renewed registration to accommodate the linking of voters to polling centres. Neither does the law specify whether registration will take place prior to the elections or concurrently, which leaves open the possibility of same-day or even simultaneous registration and voting.

The IEC will also need to determine which documents can be used for identification during registration and voting. The Special Electoral Reform Commission (SERC) previously noted that many Afghans have multiple documents, often with different names and birth dates, which might confuse the system (Afghanistan does not have a singular system for last names, or a central birth registry; many Afghans use a takhalus, which is more like a nickname that they can change any time). It also noted that Afghans who do not have valid identification risk being disenfranchised, and recommended that an exception to the identification requirement be made for those without a valid ID. This could open the door to abuse again.

In the past, plans for an improved system of voter registration have often been based on the idea that an accelerated rollout of the e-Tazkera, or electronic ID card, would introduce a secure form of identification that could be used as voter ID as well. The introduction of the e-Tazkera, however, has technical and political difficulties of its own. It is unlikely that it will be implemented any time soon.

Introducing electoral crimes and penalties

Where previous electoral laws only specified electoral violations (distinguishing between negligence and fraud), the new law now lists twenty acts that are considered electoral crimes and carry stricter penalties (art 99). For instance, the act of “preventing the participation of agents, observers and media during the polling and counting process for the purpose of concealing the truth” is now considered a crime that carries a penalty of up to three years imprisonment. (In the 2013 electoral law, the electoral violation of “preventing the national and international monitors and observers from monitoring the electoral process” was punishable by a fine of 100,000-500,000 Afghani, or about 2-10,000 US dollars.)

The list of electoral crimes in the new law reads as a catalogue of the ways that candidates, supporters, electoral staff and others have, in the past, tried to influence the outcome of elections (for more details on these efforts, see here and here). The penalties are generally high (imprisonment). A full list of the crimes can be found in footnote (3).

The criminalisation of electoral violations has been touted by the government as an important measure to mitigate fraud (see the president’s comments during a consultative meeting with political leaders here). However, as always, a law is only as good as its implementation. The law, moreover, is not fully clear about the different lines of authority. According to article 97, the Electoral Complaints Commission (ECC) is obligated to investigate and identify electoral crimes and refer the perpetrators to the relevant authorities. According to article 99, however, “penalties will be declared by the [Independent Election] Commission and implemented by the law enforcement authorities.”

Given the heated atmosphere that usually surrounds elections, including sustained allegations of partisanship and manipulation against both electoral bodies, it is potentially problematic to give the authority to prosecute and punish violations to the main implementing bodies. (The IEC conducts the elections and the ECC, although it does not implement the elections per se, has in practice become the final body to rule on which votes get counted and which do not, thus affecting the final outcome of the elections.)

Employing civil servants as temporary electoral staff

The electoral law defines two categories of staff for the IEC and the ECC: permanent staff at headquarters and provincial offices, and temporary staff. In the 2013 law, both permanent and temporary employees were hired through a process of staggered recruitment (many candidates would try to get their supporters recruited as IEC staff). According to the new law (art 23) “temporary electoral workers at the polling centres and stations shall be assigned from amongst school teachers, lecturers of government institutions for higher education and government administrative personnel, in accordance with procedures adopted by the Commission.” The measure to enlist government workers as temporary staff is intended to decrease the costs of temporary recruitment and to simplify the recruitment process. It could, however, also become controversial. Campaign managers and other candidate supporters have, in the past, tried to mobilise all kinds of networks in support of their candidates, including teachers and civil servants. The impartiality of temporary IEC staff will therefore still not be guaranteed.

Structural changes to the committee that selects the electoral commissioners

The Selection Committee for the electoral commissioners (IEC and ECC) 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 the commissioners. The Selection Committee calls for applications, vets and selects qualified candidates based on criteria specified in the law, and presents the shortlist to the president for his final selection. The new law has brought three changes to this committee: it reduced the number of committee members from six to five, changed the composition of the committee and pre-appointed the elected member of the High Council of the Supreme Court as the chair (previously, the chair was elected from among the members).

The composition of the Selection Committee has changed with every iteration of the law, as the different actors negotiating the law kept a close eye on who would sit on the committee, as a result of the changes, and how this would affect the factional balance. In the previous 2013 law, the committee was made up of six members: the speakers of the Wolesi Jirga and the Meshrano Jirga, the Chief Justice, the chairperson of the Independent Commission for Oversight of the Implementation of the Constitution (ICOIC), the chair of the Afghan Independent Human Rights Commission (AIHRC) and an elected representative from among civil society organisations working on elections. (In previous versions of the current law, which were not passed by parliament, the Selection Committee also included an elected representative of the media).

The new law has removed the speakers of the two houses of parliament (a move that was made possible by the decision not to present the decree to parliament for approval – for more details see here) and replaced them with a civil society member from among the organisations defending women’s rights. The SERC recommended the removal of both speakers, arguing in its report to parliament that “a balance should be struck between government and non-government members.” It argued further that “many advisers” had suggested that the National Assembly should not be represented in the committee, since it was “a beneficiary in the election.”

The new law further substituted the Chief Justice with a member of the high council of the Supreme Court and replaced the chairpersons of the ICOIC and AIHRC with members from these organisations. It retained the member elected from among civil society organisations working on elections.

Structural changes to the IEC and its secretariat

The new law adjusts the structure and operations of the IEC (articles 11, 12 and 22). It decreases the number of commissioners in the IEC from nine to seven, reduces their term from six to five years and introduces staggered appointments so that not all commissioners are replaced at the same time (as a result, the recent new appointments were for two different terms: four members for a period of five years and three members for a period of three years.) This was recommended by the SERC to safeguard both institutional memory and continuity of experience in the future. The terms of the chair, deputies and secretary have also been decreased (two and a half years for the chair and one year for the other positions, instead of three-year terms for all posts). The requirements for the IEC commissioners have been increased: the minimum age went up (from 30 to 35), as did the number of years of required work experience (now ten years for a Bachelor degree, seven years for a Masters and five years for a PhD). The new law also specifies required fields of studies (law, sharia, political sciences, management, sociology, economy or other related fields).

The new law further makes the IEC secretariat subservient and accountable to the commission (art 22.4: “The Secretariat shall carry out its duties in accordance to the provisions of the law and the procedures adopted by the Commission, and shall report to the Commission”), which is new. The 2013 law did not require the secretariat to report to the commission. On the other hand, the IEC now has to propose three candidates for the position of Chief Electoral Officer to the president (instead of just one). Article 27 further gives more detailed instructions on how the IEC should establish a media committee, comprised of three members.

Structural changes to the ECC and its secretariat

Unlike the IEC, the Electoral Complaints Commission (ECC) is not enshrined in the constitution, but was established based on the earlier Electoral Law. There were, as a result, extensive discussions within the SERC about the constitutionality of the ECC and whether a complaints mechanism could be introduced under the authorities of the IEC instead. In the new law, however, a separate ECC has been retained “to address objections and complaints arising from electoral negligence and violations, and to identify crimes related to the elections” (art 28:1).

Like the previous 2013 law, the law distinguishes between the Central Electoral Complaints Commission (CECC) and the Provincial Electoral Complaints Commissions (PECC). The CECC, which is based in Kabul, has five members. The new law does not reduce or increase the number, but it does include a provision that the government, in consultation with the United Nations, can appoint two international election experts as non-voting members “to ensure transparency and address challenges” (art 29.6). The ECC has had international members in the past, which was welcomed by some and met with suspicion by others. The SERC had included this in its recommendations, arguing that this was “done in other countries as well,” probably in an attempt to dispel sensitivities towards the involvement of foreigners in the electoral process.

Article 28 of the new law raises the requirements for ECC membership, raising the age from 30 to 35, and stipulating that the candidates should have higher education in the fields of law or Islamic jurisprudence. Article 34 retains the provision that the CECC is independent in its budget spending, after having prepared the budget in consultation with the government, but requires the commission to present its report according to the provisions of the law (it does not specify to whom).

The provincial complaints commissions (PECCs), which are established one month before candidate registration, will have three members each – two of them (one man and one woman) introduced by the CECC and a third introduced by the AIHRC – which have to be approved by the president (art 31.2). In the 2013 law, all three members were introduced by the CECC and approved by the president.

As with the IEC secretariat, the new law makes the ECC secretariat accountable to the CECC, and as with the IEC secretariat, the ECC should propose three candidates to the president for the position of head of the secretariat, instead of just one (article 32).

Changes that affect the composition of the elected bodies: reserved seats for women and Hindus/Sikhs

The constitution stipulates that, on average, at least two women from each province are to 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). Subsequent electoral laws also allocated seats for women in the provincial councils: in the 2013 electoral law this was “at least 20 per cent.” The new law increases 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 now also gives the same allocation to the district councils (art 61.2) and village councils (art 64.2). The law does not include a quota for women in the municipal councils, which, to date, have not been formed.

Article 48 increases the number of Wolesi Jirga seats from 249 to 250, maintaining the ten reserved seats for Kuchis and allocating the extra seat to a joint representative of the Hindu and Sikh communities (Article 83.4 of the Constitution sets the maximum number of Wolesi Jirga members at 250). This lumps the two tiny, only non-Muslim communities together (details about them in this AAN dispatch) and separates them, together with the Kuchis, from the rest of the population. The reserved seat for the Hindu and Sikh community had been included in earlier drafts of the electoral law, but removed by the Wolesi Jirga, which argued that the community was not large enough to warrant a separate seat and that the Hindu and Sikhs should be treated equally with other citizens of the country. (4)

The new law also reduces the number of members of the provincial councils, district councils and village councils proportionate to the population. For the provincial councils (art 58), for example, this has now become:

  • Population up to 500,000 – 9 seats
  • Up to 1,000,000 – 11 seats (down from 15)
  • Up to 2,000,000 – 15 seats (down from 19)
  • Up to 3,000,000 – 17 seats (down from 23)
  • Up to 4,000,000 – 19 seats (down from 29)
  • Over 4,000,000 – 21 seats (down from 33)

The largest district council has gone from 15 to 11 members (art 61) and the largest village council from 11 to 7 (art 64).

Article 59 adds the proviso that if a member of the provincial council is unable to fill his/her seat (due to death, resignation, sickness or disability), and more than one year of their term of service remains, the seat will be given to “the next candidate of the same sex (male or female) with the most votes, based on the list prepared by the Commission.” The same proviso was added for members of the district and village councils, and retained for the Wolesi Jirga.

Changes in the articles on campaigning

Article 76 of the new law reduces the campaign period for most races: 20 days for the Wolesi Jirga and provincial council elections (down from 30), 15 days for district council elections (down from 20), and 7 days for village council elections (down from 10). It retains 60 days for the presidential election and 20 days for the municipal council and mayoral elections.

Whereas the 2013 electoral law imposed caps on spending in the various election campaigns, article 77 of the new law leaves it to the IEC to enact a procedure based on the following three criteria: 1) number of eligible voters 2) area and 3) geographical location of the electoral constituency. During SERC discussions, it was argued that setting the same caps for candidates in all provinces might not do justice to the varying challenges they would face. The law now explicitly obliges candidates to report on their campaign spending to the IEC.

Where the previous electoral law prohibited candidates from accepting or receiving either financial or technical assistance from foreign entities during the campaign, the new law (art 77) only bans foreign financial assistance. The argument in the SERC was to not deprive the country of the democratic experiences of other countries.

The presidential election’s second round

Due to the ethnic and factional nature of alignments, Afghanistan’s presidential elections tend to go to a second round, to ensure that the president is voted in with “more than 50 per cent of votes cast by voters through free, general, secret and direct voting” (art 61 of the Constitution). A paragraph in the new law makes explicit what happens when one of the two runner-up presidential candidates decides not to participate in the run-off election (as happened in 2009): “In case one of the candidates does not participate in the elections in the second round, the other candidate is recognised as the winner” (art 45.5). The 2013 electoral law made no reference to such a scenario, even though the IEC, in 2009, had already set the precedent by declaring Hamid Karzai the elected president after the runner-up and current chief executive, Abdullah Abdullah, withdrew. (5) This explicit addition may invite forced withdrawals and opens the way for a president to be elected with less than 50 per cent of the vote, as the votes in the first round are still divided among many candidates. According to the new provision in the electoral law, if – hypothetically speaking – Karzai had withdrawn in 2009, Abdullah would have been allowed to be president with, according to the IEC results, a little over 30 per cent of votes.

Article 46 of the new law retains the constitutional clause which stipulates that if one of the presidential candidates dies during the first or second round of voting, or before the announcement of the results, new elections will be held among the remaining presidential candidates (this is sometimes referred to as the “assassination clause”). It has, however, done away with the impractical stipulation of a 30-day timeframe during which the new elections had to be held, which was included in the 2013 law.

Reintroducing the exclusion clause for links to illegal armed groups

Article 44 reintroduces the ban on commanders or members of illegal armed groups from running in the elections; the clause existed in earlier versions of the electoral law but was removed in 2013. The article states that:

Commanders or members of illegal armed groups may not stand as candidates in elections. The commandership or membership of illegal armed groups is vetted and necessary decisions made by a separate commission comprising representatives of the Ministries of National Defence and Interior Affairs, the General Directorate of National Security and the Directorate of Local Governance, chaired by the Chairperson of the Complaints Commission. Complaints will be adjudicated by the Complaints Commission, the decisions of which are final.

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 (see this report). Moreover, many commanders have some form of legal cover for at least a proportion of their fighters. As AAN reported in 2013:

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.

It remains to be seen how the reintroduction of vetting for links to illegal armed groups, and the politicking and complaints surrounding the process, will affect the line-up of candidates in future elections. It also remains to be seen whether mechanisms can be introduced to improve the implementation of this legal provision.

Looking ahead

The signing of the new electoral law and the appointment of a new IEC and ECC means that – at least nominally – the requirement of electoral reform, as stipulated in the 2014 National Unity Government agreement and demanded by the chief executive’s camp, has been met. The most controversial and complicated changes, however, have not been finalised and have instead been passed on to the Independent Election Commission. The IEC will now have to grapple with the redrawing of electoral constituencies, a reopened discussion over the electoral system and the introduction of a voter registration system that links voters to polling centres. Each of these issues will require a large amount of technical and political finesse and will most likely result in new rounds of bickering and delay.

The IEC said it intends to announce the date for the upcoming parliamentary elections, as well as its plan for either the cancellation or the re-accreditation the voter cards, at the latest, in the next month. But whatever date gets announced, it is unlikely that elections will still take place in 2017. Practically speaking, once the parameters are clear, the IEC will need around a year to prepare and organise. This means that even in the best-case scenario – that is, if the IEC’s proposal on electoral constituencies is indeed ready by late February and is immediately accepted, and if no other major controversies come up – this will, at the very least, bring us into the spring of 2018.

 

 

(1) The two laws – the Electoral Law and the Law on the Structures, Authorities and Duties of the Electoral Bodies (or Structure Law, for short) – were combined in order to simplify the procedure and to solve the ongoing debate as to whether at least one of the laws still needed to be passed by parliament. For background on the politicking that preceded the current law, see earlier AAN reporting here, here and here.

(2) Initial alternatives to the SNTV system included a first-past-the-post, single-member constituency (FPTP) system, which is discussed above; a list-based Proportional Representation (PR) system (options with open and closed lists were both discussed); and a parallel system, which would combine the current SNTV with a partial PR system.

In a later round of discussions – after the SERC had suggested the parallel system and had lost two dissenting members to a boycott – the SERC (with outside help) developed the Multi-Dimensional Representation (MDR) system. MDR is based on multi-member constituencies, and includes a proposal to possibly decrease the size of the largest constituencies.

The MDR system, which was especially tailored to address the demands and concerns that had come up in the SERC’s discussions, allows individuals to run either as independents or as part of a list (whether a party list, a coalition of parties, or an ad hoc gathering of individuals). Voters would still vote for individuals, but the determination of the winners would be done in two steps – first counting how many seats the best-performing lists have earned and then awarding seats to the individuals on these lists with the most votes. This would not change much for the voter, but the outcomes of the count can be easily misunderstood, as individuals with far fewer votes than others could still win a seat if their list did better than others.

(3) The listed electoral crimes and their penalties, include: misuse of military resources and signs for the purpose of frightening or influencing a person in favour of or against a candidate (imprisonment of up to three months); receiving or offering bribes for the purpose of exerting influence in the electoral processes (five years imprisonment); threat, intimidation, irreverence and exertion of pressure (five years imprisonment); hiding results forms and ballot papers for the purpose of concealing the truth (two years imprisonment); displacing, transferring or taking into possession electoral documents without a lawful permit (up to three years imprisonment); receiving funding from illegal sources (up to three years imprisonment); receiving or accepting material assistance in cash or kind from foreign sources (up to three years imprisonment); bringing changes in the result forms that do not correspond to the votes in the ballot box (up to three years imprisonment); tampering with the software and hardware systems of the results tallying centres without legal authorization (imprisonment of no less than one month and no more than one year); exerting violence or pressure or disrupting the security situation that leads to an interruption of the electoral process (imprisonment of two to five years); stealing or destroying electoral documents, ballot papers or sensitive electoral materials (five years imprisonment); registration of a candidate using fake documents (deprivation of the right to register and short-term imprisonment); voting using fake documents (deprivation of the right to vote and short-term imprisonment); using the vote of a person in his/her absence (deprivation of the right to vote and short-term imprisonment); buying and selling of votes (deprivation of the right to vote and short-term imprisonment); changing or replacing electoral documents, including the registration book, results sheets and ballot papers, in favour of or against a candidate (imprisonment up to three years); increasing or decreasing votes in favour of or against a candidate during elections (imprisonment of more than three years); hiding, or not processing in a timely manner, filed complaints and objections to conceal the truth (imprisonment of more than three years); concealment or failure by staff to report violations witnessed at the polling station (short term imprisonment, no less than three months); preventing the participation of monitors, observers and media during the polling and counting process for the purpose of concealing the truth (imprisonment up to three years). If the crimes were committed as a result of provocation, intimidation or encouragement by someone else, this person shall face the same penalties as the actual perpetrator of the crime.

The law also lists 35 electoral violations that are punishable by fines (art 98). These include violations such as registering more than once as a voter, displaying candidates’ symbols in polling centres, destroying campaign materials, preventing monitors and observers from monitoring the process (apparently without the intent of concealing the truth), etc.

(4) The reserved seat for Hindus and Sikhs was included in the initial draft of the 2013 electoral law, but was rejected by parliament in July of that year. It was re-included in the new electoral law that was introduced by presidential decree on 3 September 2013, but was removed again by the Wolesi Jirga. This is the third time the government has introduced the separate seat for Hindus and Sikhs. This time it is likely to remain as the Wolesi Jirga, according to the ICOIC, is not allowed to discuss or vote on the law. For more background on the back and forth, see AAN’s previous reporting here.

(5) The IEC justified its decision by arguing that Karzai had received the most votes in the first round and, after the withdrawal of Abdullah, had no contender in the second. Abdullah’s supporters, who had contested the outcome of the first round, argued that the IEC’s decision had no basis in the law and warned that this would not solve Afghanistan’s problems (see previous AAN reporting here).

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Thematic Category: Political Landscape