The reform of the Afghan electoral law is moving again. ANTONELLA DELEDDA looks at the proposed amendments that are circulating in Kabul, at the question whther this can be done by presidential decree and whether this would be the urgently necessary ‘organic reform’ or mainly serves the interests of the current elite after the faulty 2009 election.
The need of reforming the electoral legal framework is one of the recommendations that all observers’ mission reports have made after the 2009 electoral experience. Indeed, the core of the electoral framework is still contained in the 2005 presidential decree, which was adopted in the transitional phase and has many shortcomings.
Since its inception, the Parliament failed to reform it, either by transforming that decree in a proper law or by approving the specific bill which was submitted to it in 2007. In fact, during the scrutiny of the latter, a conflict – including some real fighting – erupted between Hazara and kuchi (nomad) representatives, sparked by the provision for reserved seats for the kuchis but in fact in the broader sense due to ongoing land disputes between the two groups in the Hazarajat. This conflict blocked any further progress on the bill, until a few months ago, in the aftermath of the messy presidential election, the Wolesi Jirga decided to discuss the bill despite the provision of article 109 of the constitution, which prevents the parliament to change the electoral framework in the last year of its term. Finally, however, it gave in to pressure from the cabinet and did not follow up further.
It is interesting to notice that the attention of most Afghan politicians toward the electoral reform at that time focused in a direction that was different from that of the international observers. Rather than systematizing the electoral framework and filling the gaps, most politicians seemed interested in getting rid of two provisions: the vetting of candidates and the international members of the Electoral Complaint Commission (ECC).
So, while everybody seemed resigned to see the 2010 election run according to the old law and the electoral reform postponed to the next parliamentary term, all of the sudden a new electoral decree was reported as being discussed by the cabinet. This fact alone opens important questions. Like: Can an electoral law be adopted by a presidential decree? In general terms, it would be advisable to ensure a wide consultation of stakeholders on a piece of legislation that has a pivotal role on the very meaning of democracy, that is according to which rules the people exercise the right to choose their representatives. The 2004 constitution is silent on the matter, although it must be noticed that article 159 entrusts the power of issuing election related legislative decrees to the transitional government during the transition period, implying that such power is ordinarily with the legislative body. On the other hand, the constitution does foresee the presidential power of issuing legislative decrees, but that is limited to matters of immediate needs, while the draft has the scope of an organic reform. Moreover, President is allowed to pass decrees on urgent matters when Parliament is in recess, but should send it to Parliament within 30 days after it reconvenes. However, it is possible – and there were media reports indicating that this path of action is indeed pursued – that the new electoral decree will not be debated by this parliament because of the mentioned article 109, therefore depriving the legislation of the chance to be debated and supported by a wider consensus.
As we write, there are several rumours about the draft having been signed or not, and in which version, by the President. However, the version that circulated in these days is worth a few considerations, regardless whether it will be enacted in that shape or not.
At a first glance, it seems to embody an organic reform, which aims to address the legitimate concern of reorganizing norms that are now scattered in several pieces of legislation. The draft contains some improvements to the law currently in force, e.g. on the issue of the consequence of the candidates’ withdrawal. But other urgent matters, such as the voting system, are not addressed. And, reading the draft, one cannot avoid the impression that the main purpose of the changes is to address the headaches that the 2009 election caused to the country’s leadership.
Specifically, the membership of the ECC is changed to five national members and no internationals (but there is a rumour that the SRSG has obtained an assurance that some internationals members will be included again); while the new text on the withdrawal of candidates provides a post factum legitimacy to the default victory of Karzai after Abdullah withdrew from the run off last year.
Another interesting provision of the draft, and one that no doubt would make many conservative people in the country happy, is a clumsy attempt to limit the number of women in parliament, by establishing that their number cannot exceed the seats reserved by the constitution – two per province. This however violates other constitutional principles, such as article 22 that forbids gender discrimination.
Moreover, the draft tries to address the issue of the multitude of candidates and the consequent dimension of the ballots, by creating higher hurdles for candidates that want to run in several ways, mainly by increasing significantly the deposit and the signatures required to qualify as a candidate; and by introducing educational – and even mental health – criteria. All those requirements are somehow problematic: the large financial deposit (e.g. 5 millions Afghanis for the presidential race against the current 50,000; and those deposits would only be paid back to contenders that get 20 per cent or more of the vote) would only allow those people to run that have access to big assets, which in Afghanistan often coincides with being involved in illegal business; and the educational requirements (bachelor degree for presidential candidates and grade 12 for most of the others) would seem disproportionate in view of the country’s education level, barring an excessive share of the population from running for elections.
In conclusion, although there is a need for a thorough electoral reform, a presidential decree seems to be an inappropriate way to enact it, and the draft that has circulated does not meet the international standards for election.
Antonella Deledda is Chairperson of the Italian think tanks ARGO (Analisi e Ricerche Geopolitiche sull’Oriente) – an AAN partner organisation – and ASIAC (Associazione di Studi sull’Asia Centrale e il Caucaso) and Lecturer of Public Comparative Law at LUISS University in Rome. A former Parliamentary Councellor (1987-2007) in Rome and UNODC Regional Representative for Central Asia (2000-2003), she worked as Deputy Coordinator of the Italian Justice Project for Afghanistan and Advisor to the Afghan National Assembly in 2005-2006. She is also a member of AAN.
This article was last updated on 9 Mar 2020