Afghanistan Analysts Network – English

Political Landscape

A Half-Solution: Provincial Councils get oversight authority back – for the time being

Ehsan Qaane Thomas Ruttig 16 min

Instead of being resolved, the long power struggle between parliament and the Provincial Councils (PC) about how much and what kind of authority the councils would have has entered a new round in 2015 – with no end in sight. In 2014, under the previous president, a new law was designed to solve this issue. But it was caught in a three-way controversy between the new head of state, parliament and the councils during which the authorities demanded by the councils were taken away and returned and taken away again. The PCs reacted with street protests, asking for a presidential decree. They got one of a lesser status that resulted in some clarifications and even restored their desired “oversight” authority. But the decree still needs to be turned into law – and parliament has no reason to approve it this time. AAN’s Ehsan Qaane and Thomas Ruttig reveal how the controversy evolved, provide an update on the state of the affair and take a closer look at why it is still unresolved and bogged down in confusion – it is a story of poor previous legislation, conflicting interests and shifting positions.

Photo: courtesy Balkh Provincial Council

Since they were elected for the first time in 2005, Afghanistan’s Provincial Councils (PCs) have been suffering from ill-defined and, its members think, too little authority. Those elected to the councils ten years ago found out, once in their positions, that they had few facilities and no budget and that governors were often reluctant to work with them. The key issue is ‘oversight’ – which could be of any or all – or none – of the following: government budgets spent in the province, government services, the implementation of development projects and detention centres.

A new provincial council law signed by former president Hamed Karzai in 2007 contained wording that gave the PCs “oversight” authority in their respective provinces, but it remained vague in defining this authority. Even this was too much for the Wolesi Jirga, the parliament’s lower house. Arguing with a provision in the constitution, it claimed exclusive “oversight” rights for itself, and wanted only to concede an “advisory” function to the PCs (for previous reporting, see here). Ever since, this has remained the unresolved core issue.

The PCs’ quest for a new provincial council law

After the 2007 law was passed, the provincial councils started to lobby for another amendment of the law that would define their “oversight” authority, with the purpose of generally increasing their role. Four years later, in May 2011, with still no satisfactory solution in sight, the chiefs of all 34 PCs met for the first time to organise joint action (see here). After that meeting, which took place in Herat, the Independent Directorate of Local Governance (IDLG), in charge of coordination between the various branches of government at the local level, started drafting another law.

This took another three years. During that time, the draft law was first submitted to the Ministry of Justice (MoJ), which has to ensure that all laws are in accordance with existing law but which also has the authority to change draft laws without going back to the author. This is exactly what it did in this case: It removed the PCs’ oversight authority. Then the revised draft was put before the Council of Ministers for decision. The Councils of Ministers, ignoring IDLG’s lobbying to retain the original text, approved the MoJ version and sent it on to the Wolesi Jirga, the lower house of parliament, in January 2014. In another attempt to lobby for their oversight right, representatives of all 34 provincial councils met the administrative board of the lower house and asked it to adopt the IDLG version of the draft (see here). The lower house, instead, approved a version of the law that gave “advisory” rather than “oversight” authority to the provincial councils (for more details see here).

The provincial councils did not take this in silence. They met with the senators a week later, in the presence of IDLG representatives (see here and here), demanding that the senators return the oversight authority into the law. (The senate, the upper house, has to approve all laws passed by the Wolesi Jirga.) The senate did indeed amend the law again on 20 April 2014 and subsequently managed to convince the lower house members in the joint commission (that now needed to hammer out the differences) to return this authority to the provincial councils. Finally, both houses approved a version of the law on 20 October 2014 that did indeed give oversight authority to the provincial councils. The law was sent to the president for his signature on 16 November 2014.

On 29 December 2014, the president sent the law back, unsigned. According to the lower house speaker, Abdul Rauf Ibrahimi, addressing the house on 28 January 2015, the president had refused to sign the law because he was not happy with the oversight authority for the provincial councils. (1)

When the president refuses to sign a law, the lower house – according to Article 94 of the constitution – can still pass the rejected draft by a two-thirds majority. This authority is given to uphold parliament’s role as the main legislative body and to prevent the president from overruling it.

On 28 January 2015, before the lower house discussed and voted on the rejected law again, Ibrahimi appealed to the MPs to exert their authority “to approve the law by a two thirds majority or amend the law in the normal process.” (In the latter alternative, the law would be sent back to one of its 18 commissions for more discussion, then would be voted on again in the lower house, then would move on to the upper house and to the president for his signature.) Instead, however, the MPs did both; they amended the law and then accepted it by a two-thirds majority. Noticing that the president supported their initial position, they reneged on their compromise with the senate and removed the PCs’ oversight authority again.

The majority of the MPs argued that such authority was against the constitution, as it only mentions an advisory role for local government institutions, (Article 139). Overseeing government activities, both at the national and local level, they say, is the exclusive responsibility of the lower house and a shared authority would cause conflict between it and the provincial councils. Indeed, controversies have erupted over how responsibilities should be divided. On 19 April 2014, for example, MPs from Jawzjan province accused members of the Jawzjan provincial council of interfering with their tasks, circumventing the MPs and discussing provincial affairs directly with some ministers – after PC members accused them of carelessness towards the local population;  (see here).

This argument – that giving PCs oversight of local government institutions is unconstitutional – had, however, already been rejected by the Independent Commission for Oversight over the Constitution’s Implementation (ICOCI); it had earlier ruled that neither giving nor withholding such an authority would be against the constitution.

What is really at stake?

The lobby for a new law focused on three main issues. The first and most important was to increase the role of provincial councils by boosting their oversight authority. According to the 2007 PC law, they could only oversee the effectiveness of provincial budget expenditures. (2) The new draft law, rejected by the MPs and the president, gave PCs the authority to also oversee the implementation of development projects, the quality of these projects and service delivery by the local government. (3) A second issue was increased financial independence. In the 2007 law, the provincial governor’s office was to pay PC members’ salaries and expenditures, which made them dependent on the governor’s office. In the new draft law, salaries and expenditure was provided by the central government through the IDLG. (There were also problems with the wording, which needed to be corrected.)

The main point of contention has been the oversight authority. Supporters of this authority argued that boosting the role of the elected PCs could help control corruption and abuse at the local government level. Others, however, argued that the greater power could further corrupt PC members, or enhance their chances to use their position for exacting undue influence, for example by pushing for the appointment of people close to them. This is what, according to Ahmad Khamush who is in charge of IDLG’s Local Council Affairs Unit, the president refers to when he says this authority could lead to “new cycles of corruption” at the local level (see also here).

A decree, instead of a law

In response to the Wolesi Jirga’s turn-around on the law, on 29 January 2015, 16 of the 34 provincial councils closed their offices in protest and sent representatives to Kabul to make their case. They met President Ashraf Ghani on 3 February 2015 who, according to this Palace statement, said that he now agreed with the supervisory role of provincial councils but “within a specific set of criteria with transparent accountability.”

On 4 February 2015, Ahmad Khamush from the IDLG, which initially drafted the new law and advocated for adding the oversight authority, in a press conference – reported by Afghan media – tried to explain this shift in the president’s position:

President Ghani rejected the provincial council law because some members of the provincial councils misused their authority in the past. The president thought giving such authority to the provincial councils would create a new cycle of corruption at the local level. But after the president met with representatives of 16 provincial councils, on 3 February, he agreed with the nature of oversight authority for the Provincial Councils, but he stressed this authority should be implemented based on specific mechanisms and within particular scopes [sah-e nezarat].

But although the president apparently now agreed to the oversight authority in principle, no practical action was taken. So PC members – including the heads of all 34 provinces – stepped up their campaign, came to Kabul and took to the streets in protest, blocking the road to Kabul’s international airport on 12 February 2015 (see here and here). On 16 February 2015, second vice-president Sarwar Danesh met PC representatives (see here) and promised on behalf of the president that a presidential decree would be issued in the next cabinet meeting, planned for 25 February 2015 (see here). On 26 February 2015, Ali Yazdanparast, a member of Kabul’s provincial council told AAN that the cabinet had indeed decided to return the oversight authority by a presidential decree, but that no one had seen the decree yet.

When faced with further delays, the PC representatives staged a two-day sit-in at the Office for Administrative Affairs (see here) on 3 and 4 March 2015, refusing to leave until the president issued the decree they demanded. Finally, after 38 days of protests, Ghani issued an ‘administrative’ decree – as opposed to a full-fledged ‘legislative’ one – on 5 March 2014 (see here).

Why an administrative decree and what does it say?

The president can issue two kinds of decree: administrative and legislative. An administrative decree is a directive for governmental officials and does not need the approval of the parliament. A legislative decree, usually simply called a ‘presidential decree,’ however , has the status of a law. The president can issue such decrees on pressing issues when the parliament is in recess, but they should be approved by the parliament as soon as it returns. (4)

After the parliament went into its winter recess (and after it had voted down the PCs’ oversight authority) in January 2015, the provincial councils asked for a legislative decree. The cabinet approved the request on 25 February, but the president, instead, issued an administrative decree. A reliable source within the palace told AAN that after the cabinet agreed to issue the decree, some of the president’s advisors persuaded him not to confirm the decision of the cabinet. That at least an administrative decree was issued appears to have been the result of the pressure of the provincial councils’ sustained protests.

The decree on the PCs’ oversight authority has three articles. Based on these articles, they have been given back the oversight authorities that were contained in the 2007 law. However, the provisions in the decree also do not exceed those already given in the 2007 law, and the exact mandate and mechanisms continue to remain vague. Nevertheless, the IDLG is now tasked with providing the facilities to implement the new provisions. (5)

The 2007 PC law mentions the word oversight (nezarat) twice. The first time, in Article 2, it says that the “Provincial Council . . . advises the local administration and oversees [it]” and the second time, in Article 4.2, the law gives power to the PCs to “advise on and oversee the effective use of financial resources at the provincial level.” The law, however, does not specify the mechanism: how practically a provincial council should oversee the provincial administration and what it can do with the oversight authority. The law is also silent about the responsibility of the local administration, in particular whether and how it should react to the provincial council’s recommendations and if not, what the next step would be. In fact, referring back to the 2007 law with regard to the overseeing authorities means a continuation of uncertainties – one of the things that those lobbying for the new law had hoped to address.

Following the issuance of a law with a clarifying decree, as president Ghani did, is not unprecedented. Former president Hamed Karzai did something similar after the issuance of the 2007 PC law when, on 11 May 2007, he issued a decree (6) saying that the provincial governors should prepare their development budget plans together with the PCs and that the plans should be approved by them before submitting them to the central government. Karzai’s decree also made the provincial governors responsible for providing PCs with facilities and specified that the councils’ oversight authority included “monitoring the implementation of law, balanced reconstruction, reform and good governance.” The mechanism for overseeing and the obligation to implement decisions of the provincial councils were, however, also not addressed in Karzai’s decree. This decree is no longer valid.

Whereas Karzai’s decree was mainly a clarification of the law existing at the time, one could argue that Ghani’s decree in practice overrules the law. Although the newly adopted law does not explicitly say that PCs cannot have oversight authority, this provision was clearly removed from the final version of the law. According to a source from the presidential office, the decision to issue an administrative decree rather than a legislative one was taken after some of the president’s advisers argued that returning the oversight authority would damage the relationship between the president and the Wolesi Jirga. This was particularly relevant as the government, at that point, still needed the lower house’s vote of confidence for the remaining members of its cabinet. So far none of the MPs has reacted against the decree.

The president’s conditions

When the president said he would return the oversight authority to the provincial councils, he did so under two conditions: The oversight should be based on a specific mechanism, and the PCs should issue quarterly reports of their activities to him. Or as described in this palace statement:

[The] President added that the supervisory role has to be in the frame of a clear contract bearing mutual accountability. The IDLG has been instructed to come up with a draft identifying the legitimate supervisory discretion of Provincial Councils, continued President Ghani stating that the amendment will, after Provincial Councils’ consensus, be placed before the parliament.

This is based on Article 40 of the current PC law that gives authority to IDLG to approve procedures (such as how the PCs can use their oversight authority in practice), in coordination with PC heads. According to the customs of Afghanistan’s legislative system, administrations have the right to develop and approve procedures by themselves, and there is no need for confirmation by the president or the Council of Ministers. The drafting of the procedure also would, finally, involve PC members in fixing what and how they can exercise their oversight right and how their findings will be dealt with.

Accordingly, the IDLG drafted a procedure and presented it to the PC representatives on 7 February 2015. The representatives suggested certain amendments, including making oversight a daily authority on topics that can be suggested by individual members and, specifically, adding oversight of the detention sector. A revised version of the draft procedure was presented during a conference in Kabul on 2–4 May 2015, to which all members of the 34 provincial councils were invited by the senate.

The current draft, which AAN has seen, has 13 articles and says that PCs can oversee the following fields: provision of services by the local governmental authorities, detention centres, budget expenditures, the implementation of development projects and project indicators. The procedure stresses that, because these responsibilities require technical knowledge that members of the provincial councils may not have, they will need to use the services of experts. (The procedure for hiring such experts remains open, again.)

The oversight mechanism is also clarified in the procedure and seems designed to prevent individual meddling. The PCs are instructed to exercise their oversight authority through permanent committees (in Dari: kamitaha-ye muwazaf) – somewhat similar to the parliament’s commissions – the structure of which they can decide themselves. In case of necessary investigations into wrongdoing in the province, they can become active on their own initiative, after confirmation by a two-thirds majority of all members, or based on complaints from residents on a particular issue. (In the second case, the procedure concerning how many PC members must agree to form such a committee is left open.) The committees are not allowed to send their recommendations directly to the involved local institutions; instead they should go through the provincial governor’s office. If the local institutions ignore their recommendations, the PCs can forward their recommendations to the president or the parliament through the IDLG.

The procedure would make local government authorities responsible to report regularly to the PCs. For example, provincial administrations are instructed to share their budgets within 20 days of the parliament’s approval of the national budget and to quarterly provide reports on the progress and challenges of the projects and expenditures of both the development and ordinary budget.

The procedure also lays down some limitations for PC members: they are not allowed to fire or appoint any employee; they cannot intervene illegally (ie outside the oversight process) to ask the provincial government to stop or implement any action; and they cannot sign contracts or support anyone to get a contract with the local administration. All these are currently widespread practices. Finally, the procedure gives the right to residents of a particular province to complain against PC members or the PC as a whole. This complaint is then addressed by the Code of Conduct Committee (Kumita-ye Usul-e Raftari) of the same PC or by the IDLG. If the complaint brings up legally culpable offences, the Code of Conduct Committee should send it to the Attorney General’s Office for prosecution.

There is only one problem. Despite the oversight right, in principleconfirmed by the president’s March 2015 decree, it has not yet been made law. And this needs to involve the Wolesi Jirga, which is sticking to its principled opposition to the PCs’ oversight rights.

More opposition

In addition, PCs are still opposing the compromise that the president’s decree might have made possible. The discussion of the draft during the conference in early May was meant to result in its confirmation by PC members and to wrap up the whole debate. But this did not happen. PC members avoided publicly expressing either their support or opposition to the draft procedure. But at the margins of the conference, a number of them argued, when speaking to AAN, that the procedure was meaningless, because now the oversight authority is not backed up by a proper law, and because it unduly limits their authority. (AAN did not hear a single voice of support for the procedure.) They also raised further points that should be included in the procedure (for example, the right to oversee procurements on the provincial level) or dropped (for example, the provision that a two-thirds majority is required for setting up ad hoc committees).

Since the PCs failed to accept IDLG’s procedure on the oversight authorities at the early May conference, the issue of the PC law is, in essence, back at square one. The Wolesi Jirga has not given up its principled opposition to the PCs’ oversight rights, while the PCs – in their dealings with the IDLG – are constantly upping the ante. They also reject the compromise laid out in the president’s decree and the procedures developed on its basis.

The protracted conflict over the PCs’ oversight authority is more than just a controversy over details of an administrative issue. It reflects how poor legislation inherited from the previous government (regardless of whether the shortcomings represent a lack of capacity and understanding or are the result of political intent) continues to affect the working of the current one. Another inheritance from the Karzai era is the strained relations between the executive and the legislative – the latter was often outmanoeuvred by the former and therefore is hitting back wherever opportunity arises. Provincial councils are caught in the middle.  However, they are not fully unselfish in this case; after all, Afghans know how elected and other positions are used to bargain for favours. With their resistance to the IDLG procedure, and their constant advancement of new preconditions, they try to defend ‘rights’ of influence that parliamentarians ‘traditionally’ had but which do not fit within the new constitutional framework.

Although this issue has not yet been raised by the PCs, how the PCs are subordinated to control by the executive is also problematic. Lines between the executive and the provincial-level element of the legislative, the PCs, are blurred by at least two factors: they report to the president (it would be more ‘natural’ for them to report within the legislative, to parliament) and the IDLG has budgetary control over the PCs. The IDLG both drafts the PCs’ budgets and is responsible for hiring their administrative staff.

All in all, the PC law controversy is a case study in how weak political institutions remain, and how easily vested interests can exploit holes in the law and, in this case, prevent necessary checks-and-balances from emerging on a subnational level.

What’s possible next?

Now, despite the mutual blockade between the Wolesi Jirga and the PCs, some PC members are still arguing for another attempt at overhauling the law. Some politicians support this, at least verbally. Muhammad Alam Izedyar, first deputy chairman of the senate, promised the PC members at the same conference that the lower house would start another amendment process, based on Articles 95 and 97 of the Constitution (7) that give such a right to both houses of the parliament. While a legal base for recognising the PCs’ oversight authority is an essential need, it is however unclear whether Izedyar will be able to muster the required support of ten senators for such an initiative, and then get a majority in the house. But even if this happens, the amended law also needs to go through the Wolesi Jirga again. Under the current circumstances, however, it is difficult to see why the Wolesi Jirga should give up its principled opposition to the PCs’ oversight authority this time.

 

(1) According to some there might be an issue with the date of the rejection, given that the draft of the Provincial Council Law was initially sent to the government on 16 November 2014. The Ministry of Parliamentary Affairs, which is in charge of communication between the government and parliament, however sent the draft back for spelling and grammar corrections after which the parliament resent it on 16 December 2014. President Ghani then rejected the law on 29 December 2014. According to Article 94 of the constitution, if the president disagrees with an approved draft of law, he can reject and resend the draft to the lower house within 15 days of receiving the draft. If the president neither signs nor rejects the law within 15 days, it will be automatically applicable, without the signature of the president.

Tayeba Khawari, head of the Bamyan provincial council (Afghanistan’s first female provincial council chair), argued on her Facebook page, that because the president had rejected the draft of provincial council law too late, 42 days after it was sent, it would automatically become law (here). She said that none of the related laws and regulations say that the Ministry of Parliamentary Affairs has the authority to resend drafts to the parliament; once the draft is issued by the parliament and sent to the government, only the president can sign or reject the draft. In practice however draft laws are regularly sent back to the parliament for corrections before being sent on to the president.

(2) Relevant article in the 2007 provincial council law on the provincial councils’ oversight authorities:

Article 4:

Para 2: [Provincial councils] give advice and do oversight on the efficiency of the expenditure of the provincial budget.

(3) Relevant article in the original 2014 provincial council draft law (which was not adopted):

Article 8:

Para 3: [Provincial councils] give advice to the provincial governor and the related governmental organisation and oversee the effective use of the financial resources and their [the provincial governor and other related governmental organizations] activities with the purpose of filling the gaps and boosting the quality of services.

Para 13: [Provincial councils] advise and oversee the development projects with the purpose of boosting the quality and quantity of governmental services.

(4) See Article 79 of the Constitution: During the recess of Parliament, the Government shall, in case of an immediate need, issue legislative decree except in matters related to budget and financial affairs. Legislative decrees, after endorsement by the President, shall acquire the force of law. Legislative decrees shall be presented to the Parliament within thirty days of convening its first session, and if rejected by the Parliament, they become void.

(5) Full text of the decree on oversight authority of the provincial councils:

Article 1: The provincial councils can use the oversight authority as stipulated in the provincial council law that was issued in official gazette 920 on 30 Hamal 1386 (20 April 2007).

Article 2: The Independent Directorate of Local Governance is in charge of providing facilities for the implementation of the first article of this decree.

Article 3: This decree is enforceable from the date issued.

(6) Presidential Decree, number 862

Date of issue: 11/5/2007

According to Article 139 of the Constitution and Article 4 of the Provincial Councils Law, the below points with purpose of making cooperation and better understating between the local governors and the members of the Provincial Councils and boosting the importance and role of the Provincial Councils in the society and strengthen of the foundation of the Islamic Republic of Afghanistan, is approved.

1-  The Provincial Governors shall prepared the provincial development plans together with the Provincial Councils and submit it after verifying of the Provincial Council.

2-  The Provincial Governors shall provide a better space for all activities of the Provincial Councils that include oversight from the implementation of law, balanced development, reform and other important sections.

The authority of overseeing on implementation of this decree is given to Office of Administration Affairs, OAA (Edareh Omor).

Hamed Karzai

The President of Islamic Republic of Afghanistan

(7) Article 95: The proposal for drafting laws shall be made by the Government or members of the Parliament or, in the domain of regulating judiciary, by the Supreme Court, through the Government.

Article 97: . . . If the proposal for drafting a law is made by ten members of either of the two houses, it shall be after approval of one fifth of the House where it was initiated, included in the work agenda of the House.

 

Tags:

Parliament local administration IDLG president provincial councils provincial governance

Authors: