While struggling to prepare for the parliamentary (and supposedly also district council) elections scheduled for the 7 July 2018, the Independent Election Commission (IEC) and Electoral Complaints Commission (ECC) are finding themselves under increasing fire from a growing number of political groups and election observer bodies. There have been allegations of financial corruption, government interference and divisions within the two commissions. Playing upon these issues, political groups are demanding that all the electoral commissioners be sacked and replaced with new ones. In a move possibly intended to alleviate the pressure, President Ghani has now sacked the chair of the IEC. AAN’s Ali Yawar Adili considers these demands and what they might mean for the credibility of the elections and the likelihood of them happening on time.
This is part one of a series of dispatches about where the preparations for the next elections stand. The following parts will address technical issues and district elections.
This research was supported by a grant from the Open Society Foundations.
The first casualty of the criticism mounting against IEC and ECC has come: on 15 November 2017, President Ashraf Ghani sacked IEC chairman Najibullah Ahmadzai, three days after five of Ahmadzai’s fellow commissioners had written to the president asking for his dismissal. The Palace issued a statement, but it was vague, just saying the government had responded to IEC members and asking “relevant institutions” to introduce fresh candidates. Ahmadzai, in turn, said the government had acted against him because he had been standing against illegal demands by the presidential palace which he said included the demand to manipulate the elections. He provided no evidence.
External pressure had been mounting on the commissions, particularly since early October when a broad coordination group of political organisations and protest movements came out with fierce criticism against the two bodies. Called the Shura-ye Tafahum-e Jeryanha-ye Siyasi Afghanistan (the Understanding Council of Political Currents of Afghanistan), it demanded the complete replacement of the members of both commissions.
The election commissioners are appointed by the president from a shortlist prepared by a selection committee (more on which below). The IEC has seven members, four appointed for five years and the other three for three years. The ECC has five members, three of whom are appointed for five years and the other two for three years. The current teams are completely new. The old teams were all dismissed, despite not having run to the end of their terms because they were tainted by their role in the disputed 2014 presidential elections: Chief Executive Abdullah Abdullah’s camp had accused the two bodies of overseeing widespread fraud in favour of President Ghani. Operating under the assumption that the current IEC and ECC members will serve full terms, they are due to administer both upcoming elections. Parliamentary and district elections are due in 2018 – in this dispatch, we mainly refer to parliamentary elections only, as district elections have never been held before and fundamental preparations for them, including drawing up constituency boundaries, are not yet evident; we hope to look at them in more detail in a future piece. Presidential elections are due in 2019.
The current IEC and ECC members were appointed and sworn in in November 2016, two months after the government finally, after a lengthy deadlock on electoral reform, managed to pass a new electoral law. Although there was some controversy at the time, both over the choice and the process of selection, (see this AAN dispatch which includes short biographies here), it had seemed that the inauguration of the new IEC and ECC had broken the protracted stalemate in the attempt to agree on electoral reforms and that these new faces could now start planning the next (already overdue) parliamentary elections. However, almost one year on after the formation of the IEC and ECC, political groups have focused their attention on the members of these electoral bodies, seizing upon allegations of financial corruption, undue presidential influence on the IEC and internal divisions in both commissions as evidence of their inability to oversee elections.
It is worth noting that all the various political forces, whether in government or out of it, consider it crucial who controls the two commissions, as they will play a crucial role in determining who will become Afghanistan’s next MPs and next president. They will play that role whether or not the elections are fair or rigged. This obsession with the commissions was manifested very vividly in the post-2014 electoral reform process, which, as AAN previously wrote, largely boiled down not to reform as such, but to “a tug of war over who controls the electoral bodies – and through them the election’s outcome.”
Accusations and accusers
The Understanding Council of Political Currents of Afghanistan, which has hoovered up most of the opposition groupings and protest movements (full list of members below), has said in its 7 October statement entitled “The Joint Position of the Understanding Council of Political Currents of Afghanistan in Connection with the Transparency of Elections,” that the IEC “with its current composition” did not have the “ability to hold transparent and fraud-free elections and is not trusted by the people or the political currents.” It claimed that the IEC lacked “independence in decision-making,” a “spirit of impartiality,” and “sufficient and necessary managerial capacity” and was marred by “financial corruption and lack of transparency in purchases and internal disputes among the members.” The Council, without giving more detail about its allegations, demanded that:
In order to hold transparent, free and fair elections and prevent the elections from going into crisis… [t]he commissioners and heads of the electoral commissions [should] be dismissed as soon as possible and the National Unity Government [NUG] in agreement with political parties, civil organisations and prominent political personalities, [should] introduce and appoint other eligible members instead of them.
The Council also reopened a much chewed-over, legal debate, contending that the legislative decree issued by the president to pass the electoral law had not been not valid (more on this below).
Individually, members of the Understanding Council, some of whom are members or appointees of the government, had since taken up the call for the dismissal of some or all IEC members. Balkh Governor and Jamiat Chief Executive Atta Muhammad Nur, for instance, on 31 October 2017, called on the NUG to dissolve the current IEC and appoint new and “impartial commissioners.” On 16 October 2017, Foreign Minister Salahuddin Rabbani said the current IEC did not have the ability to hold elections “at the specified time in a transparent and acceptable fashion,” citing lack of clarity on “electoral constituencies, the budget of the electoral commissions and voter registration.” Understanding Council members have also accused the NUG of lacking the political will to hold elections. Anwar-ul-Haq Ahadi, a former finance minister and now head of the opposition New National Front of Afghanistan (NNFA), said on 22 October 2017 that the NUG had no intention of holding elections next year and that it was failing to recognise “the importance of time.” Ahadi’s criticism came one day after Afghan media reported that the president had sacked the head of the IEC secretariat (also known as the chief electoral officer) Imam Muhammad Warimach. Ahadi welcomed the dismissal and said he hoped for more changes to the IEC). Some media reports suggested that Warimach’s dismissal was connected with him speaking in public about the political pressure he said the IEC was under – he referred to “threats to the IEC, personal insults, a propaganda campaign and fraud by some circles.” Other Afghan media, however, reported that Warimach was fired by the president over corruption and poor performance (read here and here). (For more detail on the sacking, see footnote .)
The Understanding Council’s demand for new commissioners also came in the wake of an internal dispute within the IEC and ECC (more on this below) and at a time when the IEC is struggling to prepare for the next parliamentary (and district) elections scheduled for 7 July 2018. The parliamentary election is itself more than two years overdue and this has provided the opportunity for various political groups to doubt the NUG’s political will to hold them. So far, since 2001, no elections have been held on time – but none of them with such a long delay. Even so, as the clock ticks on this particular electoral process, both the electoral bodies and the electoral timeline are being scrutinised with increasing scepticism by both national and international observers.
In Afghanistan, the findings of a recent survey conducted by the Transparent Election Foundation of Afghanistan (TEFA) and released on 9 October 2017 showed that a high percentage of people were not upbeat about the IEC’s ability to administer elections effectively. According to this survey, 41 per cent of respondents do not believe that the IEC has the capacity to hold a transparent elections, while 29 per cent believe it does and 30 per cent are uncertain. TEFA did not ask whether people thought any body could oversee elections effectively, so it is not clear if the doubts are about the IEC per se or Afghan elections in general.  Another assessment by the Elections and Transparency Watch Organisation of Afghanistan (ETWA), released on 5 October 2017, stated that it considered the IEC to be incapable of holding parliamentary elections next year and that the necessary reforms had not been implemented.
Special Representative of the UN Secretary General to Afghanistan Tadamichi Yamamoto, in his briefing to the United Nations Security Council on 25 September 2017, also said that many stakeholders remained “sceptical that credible elections will be held on time.” This doubt has opened – so far not publically – discussions about alternative scenarios: to move the election date to October or November 2018 or even to hold the parliamentary poll together with the presidential election in 2019.
Who is in the Understanding Council and how much clout do they have?
The Understanding Council, which presented itself for the first time at a press conference on 7 November 2017 as a “coordination group” (no other details given), includes the following parties and organisations:
- Mehwar-e Mardom-e Afghanistan, a political group formed in July 2017 by former allies and aides of former president Hamed Karzai, including the former director of the National Directorate of Security (NDS), Rahmatullah Nabil, former National Security Adviser, Rangin Dadfar Spanta, and former Minister Of Transport And Civil Aviation (and former chief electoral officer) Daud Ali Najafi. The group says it aspires to take an independent political course from Karzai and presents itself as an opposition to the NUG (read AAN’s previous analysis about Mehwar here;
- The Coalition for the Salvation of Afghanistan, a semi-opposition group, also known as the Ankara Coalition, formed at the end of June 2017 by first vice-president and leader of Jombesh-e Melli-ye Islami Abdul Rashid Dostum, second deputy chief executive and leader of Hezb-e Wahdat-e Mardom Muhammad Mohaqeq, (acting) foreign minister and acting head of Jamiat-e Islami Salahuddin Rabbani and Balkh governor and chief executive of Jamiat Atta Muhammad Nur. They represent three major political parties which have shown strong ethnic support in the polls (Uzbek, Hazara and Tajik, respectively) and have remained internal dissenters and objectors within the NUG (read AAN’s previous analysis on the Ankara coalition here);
- The Council for the Protection and Stability of Afghanistan (CPSA), a political group formed on 18 December 2015 by influential jihadi leader, 2014 presidential candidate and leader of Dawat-e Islami Party (formerly the Ittihad-e Islami faction) Abdul Rab Rasul Sayyaf, former vice-president and Jamiat stalwart Yunos Qanuni and other prominent former members of Karzai cabinets including Muhammad Omar Daudzai and Bismillah Khan Muhammadi (both former interior ministers), Wahid Shahrani (former minister of mines), Ismail Khan (Herat strongman and former minister of energy and water), Sadiq Mudaber (former director of Karzai’s office of administrative affairs) and Abdul Rauf Ibrahimi and Fazl Hadi Muslimyar, speakers of the lower and upper houses of the parliament (read AAN’s analysis about the council and front here);
- The New National Front of Afghanistan, formed by former finance minister and former leader of the Afghan Mellat Party, Anwar ul-Haq Ahadi, on 14 January 2016. It has presented itself as an opposition force and is a coalition of (parts of) various small political parties, including Afghan Mellat, Hezb-e Adalat wa Tawseha (Justice and Development Party), the former mujahedin faction Harakat-e Inqilab-e Islami (Islamic Revolution Movement of Afghanistan) (read AAN’s analysis about the council and front here);
- Hezb-e Mutahed-e Melli (National United Party) led by Nur ul-Haq Ulumi, a former People’s Democratic Party of Afghanistan (PDPA) military general and governor of Kandahar. Ulumi allied himself with Jamiat-e Islami in the coalition that supported Dr Abdullah in the 2009 and 2014 presidential elections; he served as interior minister in the NUG (January 2015 to February 2016) (see AAN’s previous analysis here and here);
- De Loya Kandahar de Yawwali au Hamghagi Bahir (the Greater Kandahar Unity and Coordination Movement), a regional grouping which includes locally influential figures from the southern provinces. According to Kandahar-based journalist Mamun Durrani, the movement is run by Kandahar police chief General Abdul Razeq, MP Lalai Hamedzai (from Kandahar) and Sher Muhammad Akhundzada (former Helmand governor who is also and close ally of former president Karzai) and the head of Zabul provincial council, Atta Jan Haq Bayan; all are reportedly unhappy with President Ghani;
- De Mashreqi Welayatuno de Hamghagi Shura (the Eastern Provinces Coordination Council) was launched on 1 August 2017 with scathing criticisms of Ghani and Abdullah for what it said was a failure to deliver on (unspecified) promises. Abdul Malek Sulaimanzai, one of the Council’s leaders, told AAN on 2 November 2017 that it included “all the [political] elites of eastern provinces,” such as influential MPs and former mujahedin commanders and figures from Nangarhar, Hazrat Ali, Mirwais Yasini, Haji Zaher Qader as well as Sakhi Meshwanai, an MP from Kunar, and Muhammad Hassan Mamozai, an MP from Laghman;
- Jombesh-e Guzar (the Transition Movement), a Tajik nationalist grouping which announced its existence on 11 May 2017;
- Rastakhez-e Taghir or Uprising for Change, a movement that emerged out of protests in the wake of 31 May 2017 truck bombing near Zanbaq square (see AAN’s analysis on Uprising for Change here); and
- The Commission for the Coordination of Political and Civil Organisations, a political grouping of 12 or so parties including Hezb-e Bidari-ye Mellat Afghanistan (Afghanistan Nation’s Awakening Party), the Republican Party of Afghanistan led by Adela Bahram and Qiyam-e Melli (National Uprising) Party led by Kandahari businessman Zmarialai Ahadi. According to Maqsud Hassanzada of the Nation Awakening Party, the group was established around two years ago by people who had supported President Ghani in the 2014 presidential election, but were disgruntled with him after “he closed the Palace’s gate to them.” Hassanzada said that some of the 12 parties, including his own, were no longer with the Commission for the Coordination of Political and Civil Organisations. However, he said that even those parties that had defected from the Commission might join the Understanding Council. He remained critical of the president, calling him “a liar and reneging on his promises.”
The list of the Understanding Council’s members shows that it is a very broad political umbrella group and includes many of the major fully or semi-opposition political groupings that have emerged during the NUG tenure. It includes both those inside and outside government. The council has enormous political weight, although also a strong tendency to fragment, given that only a common desire to change the IEC and ECC appears to bind it together. It does not even have a common platform of replacement commissioners to propose.
IEC secretary and spokesman Gula Jan Badi Sayyad has tried to play down the significance of the Council, claiming, for example, during a TV discussion on 11 October 2017, that those who demanded the dismissal of the IEC members were just “12 parties” and that “the big parties” were “happy with the commission’s performance to an extent.”
The trust deficit
As was mentioned, at the very outset, the way appointments to the IEC and ECC were made were criticised by both political opposition groups and election observer organisations. First, there were accusations that certain circles around the president had interfered in the formation of the Selection Committee, the body enshrined in the electoral law with the responsibility for vetting and shortlisting applicants for membership of the IEC and ECC. Election observer organisations like TEFA and ETWA complained that the Selection Committee had been formed while most civil society activists were out of the country for the 2016 Brussels conference. They also questioned its transparency and independence, citing the fact that its secretariat was run by the Administrative Office of the President where the committee was also located and also alleging that the committee took most of its decisions behind closed doors, far from observers’ eyes. Second, the appointees were also criticised for lack of necessary experience and expertise. The comparatively small NNFA called the appointments “non-transparent and interest-based,” and aired its doubts about the “transparency of next parliamentary and presidential election” (see AAN’s previous analysis here).
Allegations of government influence on the work of the electoral commissions also followed. On 24 April 2017, Humayun Humayun, first deputy speaker of the Wolesi Jirga, claimed that the president had taken unsigned resignation letters from seven IEC members before appointing them and warned that if they did not obey his demands in the next elections, he would approve their resignations. This claim was picked up by NNFA leader Ahadi who said that he had suspected it “all along” and was firmly of “the belief that this government is not going to hold honest election and we’ll have another disaster.” Humayun, on 25 September 2017, further alleged that a president’s uncle (name not given) was working to engineer elections on the president’s behalf, and that he was doing it by inviting some MPs to his office in Kart-e Parwan, asking them to support “Ghani’s government.” In return, their names would be on the list of the next MPs (see this ETWA’s parliamentary observation report here). 
In response to Humayun’s first accusation, the IEC and the ECC issued a joint statement on 25 July 2017 saying his was an effort to “confuse the public opinion” and “to reduce the credibility” of the electoral bodies. Imam Muhammad Warimach, then head of the IEC secretariat and speaking to the upper house on 26 September 2017, accused the first deputy speaker of the Wolesi Jirga of placing “political pressure on the president.” (The senators had summoned all the IEC members, but only Warimach showed up).
In early September 2017, mistrust in the IEC began to be increasingly voiced and not only by opposition groups. Critics also included the High Council of Jihadi and National Parties (HCJNP), the first grouping to emerge after the last presidential elections, in August 2015. The HCJNP includes three large parties considered to be pro-Ghani – Nejat-e Melli party led by former president Sebghatullah Mujaddedi, Wahdat-e Islami party led by former vice-president and current head of High Peace Council Muhammad Karim Khalili, and Mahaz-e Melli party of Sayyed Hamed Gailani (see AAN’s previous analysis here). In early September this year, the HCJNP (together with NNFA and CSPA both members of the Understanding Council) came up with a joint proposal titled “Proposal of the Council for Stability and Protection, Council of Jihadi and National Parties, and New National Front about the Transparency of Elections” (AAN has seen a copy of it) in which they made clear they were not happy with the electoral commissioners and the way they had been chosen, saying they had been presented with a fait accompli. (4)
The proposal called for a new election watchdog, an election observation council comprised of representatives of political groupings and parties that would “oversee all the affairs of the election commission [IEC] closely,” including the observation of recruitment and training of the employees in the centre and provinces, the introduction of technology in the elections and logistics and other affairs of the IEC. (5)
The Understanding Council has taken this a step further and, as mentioned above, called for the dissolution of the electoral commissions. It has also threatened that its member-parties will boycott and even prevent the elections if their demands are not met. Harun Mutaref, the head of Jombesh-e Guzar, said, “We will not let it [the elections] to be held in conditions that [mean the government] has such deep influence on the election commissions.” Ajmal Balochzada, head of the secretariat of Mehwar-e Mardom, in conversation with AAN on 2 November 2017, said that their demand to the NUG was either to directly dismiss the IEC and ECC members or accept discussions on “fundamental reforms,” without explaining what these fundamental reforms would look like, except that they would also eventually lead to the replacement of the commissioners. He said that if their demand for new electoral commissioners was not met, they would present an alternative plan, which he threatened, could be an alternative to both the electoral commissions and the NUG. Again he gave no explanation of what this alternative was. Another member of the Understanding Council told AAN on 8 November 2017 that the alternative plan had not yet been decided and it would be based on consultation with people and international community.
The demand for either an additional observation mechanism or the dissolution of the IEC and ECC show that political groups feel they were not (sufficiently) consulted on appointments to the IEC (and the ECC) and that there is widespread mistrust, including even from pro-Ghani parties in the IEC and EEC. However, neither of these two demands offers a solution. An external observation council would also be open to interference and a change of faces on the commissions might also just be the focus of a new struggle for control.
Reactions from the government and IEC
There were three responses from the government and the IEC. First, in reaction to the Understanding Council’s demand for the dismissal of commissioners, the president’s acting spokesman Shah Hussain Murtazawi told Tolo on 7 October 2017 that the IEC and ECC members had been appointed “based on the law and in accordance with a specific mechanism and will continue to work.” However, the Understanding Council has since questioned this very law; on 13 November 2017, Shiwa-ye Sharq, the head of Mehwar-e Mardom’s media committee, told AAN that the legal basis for IEC and ECC appointments, a presidential legislative decree without parliament’s approval, is invalid and this is the reason why commissioners are not trusted by the political groups. Murtazavi called on the political groups “to share their corrective views with the commission.”
Since then, FEFA and TEFA as well as Hezb-e Islami leader Gulbuddin Hekmatyar have called on the IEC to share their proposals for the “better conduct of elections.” However, Mehwar-e Mardom’s Shiwa-ye Sharq criticised this call, saying it did not make sense; neither Mehwar nor the Understanding Council, he said, would ever submit their views to commissioners they do not trust. Instead, he again insisted on the dissolution of the IEC and ECC and called for an agreement for what he called an inclusive and consultative framework for the appointment of fresh members and the development of an inclusive mechanism for the observation of the whole electoral process.
Second, on 6 November 2017, Murtazawi changed his tone and, in a piece published in Hasht-e Sobh, accused “a number of political currents and some election observer organisations” of “seeking to sabotage this national process [election] with political remarks.”
Third, the IEC, for its part, on 7 October 2017, described the criticism by the Understanding Council as “premature and illegal,” pointing out practical steps for holding the elections had already been taken. On 11 October 2017, then IEC chairman Najibullah Ahmadzai in a press conference rejected the allegation that the government was interfering in the IEC’s work (a position he reversed after he was sacked). Ahmadzai suggested that this accusation by the political currents had arisen from the tensions between the opposition and the government. He asked them not to involve the IEC in those tensions.
Some Afghan election observers, such as Yusuf Rashid, FEFA executive director, have described the demand for the dismissal of the members of the electoral bodies as impractical. He and others have argued that it would reopen a time-consuming appointment process which could further delay the parliamentary and even the presidential elections. This point seems to be operating under the assumption that parliamentary elections in July 2018 are still feasible. At the same time, Rashid also pointed to the “issue of distrust in the process.” Politicians who are outside the government and the incumbent parliament, he told Hasht-e Sobh on 9 October 2017, were concerned about the government’s interference and an engineering of elections “in such a way” as to allow the NUG leaders to “bring their favourite individuals into institutions such as the parliament, provincial council and district councils.” Rashid urged the UN to play a more prominent role, not only providing technical support, but also doing “confidence-building and develop capacity within the commission for continuity of a sustainable administration.”
Divisions in the IEC and ECC
The current conflict between the commissions and its critics has been compounded by internal divisions within the IEC, an issue that has been picked up by the political groups as an additional argument, as mentioned in the joint statement of the Understanding Council, that the IEC’s “capability to hold transparent and fraud-free elections” and its credibility to be “trusted by the people and political currents.” Leading Mehwar-e Mardom figure Ajmal Baluchzada told AAN on 2 November that they had to “tell the people that the commissioners have proved incompetent after everything such as corruption and division in the IEC became evident.” (Divisions have also been seen in the EEC, although they have been less serious – see footnote (6) for more detail.)
The divisions were revealed by IEC member Maleha Hassan on 14 August 2017 during an event held by FEFA. She alleged that some IEC members had been “marginalised,” decisions were taken “secretly” by a small circle of commissioners and information was intentionally not shared with certain IEC members. Another IEC member Mazallah Dawlati, on 22 September 2017, also alleged that Chair Najibullah Ahmadzai, Abdul Qader Quraishi (the deputy for finance and administrative affairs), Gula Jan Badi Sayyad and Rafiullah Bidar were part of a group of IEC members who made decisions “secretly.” (Those supposedly out of the inner circle are Hassan, Dawlati and deputy for operations, Wasima Badghisi.) As an example, Dawlati said the four members had introduced three candidates to the president for the post of head of the IEC secretariat or CEO, without any final agreement among all the IEC members. 
These disputes resulted in Afghan media reporting, on 7 November 2017, that IEC chairman Najibullah Ahmadzai had resigned from his position (see here). This, however, was rejected by IEC spokesman Sayyad a day later. On 10 October 2017, the IEC issued a statement calling the media reports “baseless claims” and insisting Ahmadzai had neither resigned nor he intended to resign in the future. Maleha Hassan, however, told AAN on 8 November 2017 that the chairman had indeed been called to the Palace where he had been told to step down, but had refused to do so. A member of the Understanding Council claimed, when talking to AAN on 8 November 2017, that Chief Executive Dr Abdullah had confirmed to him that both NUG leaders wanted the IEC chairman to step down, a position, the member said, was an outcome of the pressure by the Understanding Council.
However, Ahmadzai’s refused to go. That, apparently, led to five IEC members Wasima Badghisi, Abdul Qader Quraishi (deputy heads for operations, and administration and finance, respectively), secretary and spokesman Gula Jan Badi Sayyad, Maliha Hassan and Mazaullah Dawlati to sign a letter calling for the IEC chairman to be fired. They said they had reviewed Ahmadzai’s activities and concluded that: he had worked against national interests and electoral law, misused his authority, and been negligent in his duties. On 15 November 2017, the president’s office issued a statement instructing the “relevant institutions” to introduce fresh candidates to the president to appoint instead of Najibullah Ahmadzai, “based on the [IEC]’s 21 Aqrab (12 November) decision and demand” for his dismissal.
One day later, Ahmadzai in a press conference called his dismissal “illegal,” saying the IEC members had demanded his resignation under threat of their own dismissal. He also accused the government of trying to delay the elections and told the people not to expect elections from the current government. According to article 16 of the electoral law, in the event of dismissal or resignation and death of an IEC member, the president should appoint a new member from among the remaining candidates introduced by the Selection Committee. (8) The call by the president’s office on the relevant institutions to introduce new candidates is unclear and only shows the complexity of the new appointment in the current heightened environment of distrust. Mehwar-e Mardom’s Shiwa-ye Sharq, in conversation with AAN on 13 November, had already warned that “a unilateral appointment of a new IEC chairman will not be acceptable.” This is further compounded by the pending fate of the head of the IEC secretariat and unresolved demand for the replacement of other IEC as well as all ECC members.
Reopening a legal debate
In addition to calling for the dismissal of all of the IEC and ECC commissioners, the Understanding Council has also reopened a legal controversy about the president’s authority to pass the electoral law which enabled the government to appoint new commissioners. Referring to article 109 (9) of the constitution which says that the National Assembly cannot amend election law in the last year of its legislative term, the Understanding Council in its joint statement concluded that if the parliament, as “the primary authority for legislation” does not have such an authority, then, a fortiori, neither does the president. It ruled that the president had “violated the law by issuing the decree” and so the decree was not legitimate. The Council’s statement also said that, according to article 90 of the constitution, which concerns the authorities of the National Assembly, the parliament, not the president, has the authority to approve, amend and repeal laws and legislative decrees. 
In fact, the Understanding Council in its statement called into question various issues: the need for a new legislative decree to amend the electoral laws; the president’s authority to issue a legislative decree; and his not sending it to the parliament for approval. The Understanding Council also criticised the amendments in the electoral law. It highlighted two areas: one, it called for preventing interference by the National Security Council in electoral affairs as the joint position said,” According to the legislative decree, involving the NSC in electoral affairs is [a] deviation from the principle of transparency, violation and trampling of the democratic process.”
This referred (as Mehwar-e Mardom’a Ajmal Baluchzada also confirmed it to AAN on 2 November 2017) to article 104 (11) of the electoral law which is about a possible postponement and suspension of elections. According to this article, upon proposal of the IEC and approval of a committee “comprised of the Head and members of the National Security Council, Chairmen of the two houses of the Parliament, Chief Justice of the Supreme Court, and Chairman of the Independent Commission of Oversight of Implementation of the Constitution of Afghanistan,” elections can “be postponed for a period of up to four months,” in case “security situations, natural disasters and other similar conditions make impossible the principle of general and fair representation in holding elections and or undermine the credibility of the electoral process.” Second, it said that “articles of the legislative decree were about appointment, separation and dismissal of the permanent and temporary employees of the electoral bodies were “in contradiction with the civil service law and labour law and this threatens the job security of the employees with the government’s interference.” However, these criticisms have come very late and might have been raised only to try to increase the pressure on the government to replace IEC and ECC members.
A vote in 2018?
The IEC and ECC members, appointed in November 2016 as part of the electoral reform that the NUG leaders had promised, are now suffering both internal division and political pressure from opposition currents. Moreover, a number of election watchdogs have also rated them as incapable of holding parliamentary and district council elections, which the IEC has scheduled for 7 July 2018. The president and chief executive cannot fully ignore the demands of the Understanding Council, with its significant number of heavyweight politicians and groupings. The president may have sacked the IEC chairman on the demand of other IEC commissioners as an easy sacrifice, made in order to try to alleviate the pressure. However, the lack of constructive dialogue and consensus between the government, political groups and the IEC from the beginning of the electoral process will make finding agreement on what to do next difficult.
Electoral preparations have been turned into a battlefield between the government and its critics. This, in addition to the lack of reform and tardy preparations (which will be looked at in more detail in this series of dispatches) call seriously into question whether a credible election can be held, not only on schedule in July 2018 but even at a later date in the year. The Afghan government and its international backers may already be considering a Plan B. However, if they are, that may only enrage the government’s critics even further.
(1) On October 2017, Sayyad, the spokesman for the IEC, told AAN that the IEC had not received any formal notification from the presidential palace nor had it been informed of the reasons for the dismissal. He said, “If the decision to dismiss him is based on any plausible reasons, the IEC will accept it.” On 21 October 2017, Shah Hussain Murtazavi, the acting spokesman for the president, in conversation with AAN, neither rejected nor confirmed the reports, but nor did he say he was unaware of them. On 22 October 2017, Abdullah Nuri, assistant to Warimach, told AAN that the news was “totally wrong” and the source of the media reports “is unclear and Warimach continue to report to the duty.” He also dismissed the report that Warimach had been fired due to corruption saying that “there has been no budget allocated for the election yet and where can be the corruption from.” On 8 November 2017, IEC member Maleha Hassan told AAN that the president in a meeting in the presence of the IEC members and representatives of the International Community told Warimach verbally: “You are a sharif (respected) person, but you cannot work for the IEC. The procurement is in crisis and appointments are problematic. The government is big and there will be a place for you.” She further said that the IEC had not received any official dismissal letter yet, though.
(2) TEFA’s survey asked the following questions:
- In your opinion, will parliamentary and district councils elections be held next year at the announced date? (45% of the participants were optimistic, 32% uncertain and 23% believed the elections would not be held on time.)
- Do you think the Afghan government is impartial in relation to next year’s elections? (29% said yes, 33% were uncertain, and 38% said no.)
- In your opinion, does the IEC have the capacity to hold a transparent elections? (29% believed the IEC had the capacity to hold a transparent election, 30% were uncertain and 41% did not
- Will you participate in parliamentary and district councils next year? (14% said they would not vote, 33% were uncertain and 53% said they would vote).
(3) Also during the Wolesi Jirga’s plenary session on 25 September 2017, Shekiba Hashemi, an MP from Kandahar and now a member of Mehwar-e Mardom, joined in the chorus, claiming that the government wanted to make former electoral chief officer Zia ul Haq Amarkhel as the Wolesi Jirga speaker by getting 151 candidates elected in the next parliamentary elections. She further alleged that the disputes among the IEC members (more on this below) stemmed from meddling by the government. On 16 September 2017, Sadiqi Zada Nili, an MP from Daikundi province, claimed that meetings were held night and day between the IEC and “parts of the government” to discuss who should be the next MPs.
In conversation with AAN, another MP also claimed that he had an authentic document showing that the IEC chairman and Amarkhel had developed a list of the next would-be MPs from each province, based on an ethnic quota, with a two-pronged objective to elect a Pashtun and pro-president majority that would also be able to elect Amarkhel as the next Wolesi Jirga speaker.
(4) A leading member of the Ankara Coalition told AAN that the High Council of Jihadi and National Parties, which is a pro-Ghani group, opted out of the Understanding Council at the last minute. On 8 October 2017, Abbas Basir, head of its secretariat, explained to AAN why:
The [original] idea was to forge some sort of coordination regarding the election. There are two reasons for not joining Shura-ye Tafahum: one, we did not have any intention to form any new current or council, because we are already operating under the High Council of Jihadi and National Parties. Second, there is a difference of opinion in dealing with the elections. We also want transparency and oversight in the election, but the question of changing the commissions and the law is a bit late.
A diplomatic source told AAN that Hezb-e Islami led by Gulbuddin Hekmatyar at the behest of the Palace persuaded members of the High Council of Jihadi and National Parties to opt out of the Understanding Council. A member of the Coalition for Salvation, however, told AAN on 8 November 2018 that the Palace prevented Mujaddedi’s council from joining the Understanding Council. On 31 October 2017, Hamed Azizi, a spokesman for Hezb, told AAN that the High Council was an independent group and Hezb welcomed its decision not to join the Understanding Council, without rejecting or confirming Hezb’s involvement. Like Basir, Azizi also said that they wanted a serious reform and were not happy with the performance of the IEC and ECC members as well as delays in the elections.
Hekmatyar has recently stood by the government’s side against growing pressure from political groups such as the Coalition for Salvation of Afghanistan. In August 2017, Azizi called the Hezb’s support for the government vis-à-vis the political groups as “creating balance” between the government and the demands of its political oppositions.
Hekmatyar went to the IEC on 4 November 2017 to share his party’s proposals about elections. There he appeared in a joint news conference with IEC members and expressed his support for them against the demand for their dismissal, saying, “Although the current commissions were reconstituted in my absence, I had have my observations but still I suggest that the current election bodies should continue their work and the power transfer should be performed peacefully.”
(5) The demand for an observation council was also picked up by Hezb-e Islami as on 31 October 2017. Its member Amin Karim said that a general council comprised of political parties and influential figures should be formed to oversee the election process. Moreover, more and more groups are joining the bandwagon of criticising the electoral bodies. For instance, on 23 October 2017, Amrullah Saleh, former NDS chief, head of the Green Trend of Afghanistan and a close ally of Chief Executive Abdullah, said that the IEC had “gone down with cancer in infancy.” He warned that political forces were already “considering and practicing their possible responses” to a “fraudulent elections.”
(6) Divisions cracked open in the ECC on 22 October 2017 after its chairman Aziz Ariayi issued a statement saying that the ECC had sacked five senior staff including the deputy head of its secretariat, head of analysis and review department, head of human resources department, documents and communication manager, and staff attendance officer. (see here) The ECC chairman listed 11 reasons for the dismissals, including manipulation of electronic attendance, disobedience of the president’s order and creating obstacles for the ECC’s reform plans. (see here) This laid bare the differences that existed in the EEC as its deputy head, Humaira Haqmal, complained that the decision had been based on “vested interest and tendentious.” The head of its secretariat, Muhammad Ali Setegh, also called the dismissal as “cruel political decision and against the country’s effective laws.”
The ECC chairman earlier, during an event organised by TEFA (which was also attended by the author), on 12 October 2017, said that those who were accused of fraud in the 2014 elections were still in the IEC and ECC and only 12 commissioners had been changed, referring to the seven IEC members and five ECC members. He threatened to resign if the government failed to address the alleged interference, without pointing a finger at any particular group.
(7) The position of IEC CEO had remained vacant for more than two years, since former CEO Zia-ul-Haq Amarkhel resigned from his position in 2014, amid allegations of serious electoral fraud. The secretariat had been run by an acting head. Like the IEC commissioners, the CEO is a very important appointment, which according to article 22.3 of the electoral law, is made by the president from among three candidates proposed by the IEC. On 1 March 2017, President Ghani appointed Muhammad Warimach as head of the IEC secretariat, out of eight candidates he, vice-president Sarwar Danesh and Chief Executive Abdullah had interviewed the previous day. A ninth candidate had been out of the country. Unlike the provision of the electoral law, the introduction of nine candidates for the position came after an initial list of three candidates had become controversial Warimach has completed his higher education in India and worked in the office of the former chairman of the IEC, Yusuf Nuristani.
(8) Article 16 (paragraph one) of the electoral law says that an IEC member can be dismissed for the following reasons:
- Faking of the educational documents.
- Deprivation of civil rights on the order of a competent court.
- Conviction for committing crimes of misdemeanor or felony.
- Having membership in political parties during membership of the Commission.
- Breaching provisions of the Constitution of Afghanistan, this law and other laws enforced in the country.
- Suffering from an incurable or long-lasting disease which impedes performance of duties.
- Continuous absence from job for more than twenty days without justifiable legal reasons.
- Non-observance of provisions of Article 17 of this law.
Paragraph five of the article also says that in addition to these conditions, other conditions shall been determined by the Commission. The IEC reportedly demanded the dismissal based on this paragraph.
Based on this article (16.3), in this case (or in the case of resignation or death of an IEC member) the president should appoint a new member from the list of the remaining candidates introduced by the selection committee, as per article 14 of the law, according to which the Selection Committee, from among the candidates for the IEC membership, introduces “21 persons to the president that meet the highest and most appropriate legal standards, while taking into consideration the ethnic and gender composition.” The president then appoints seven out of these 21 candidates. Paragraph four of article 16 further says that if the dismissed (or resigned or deceased) member is also the chairman or deputy or secretary of the IEC, there should be a new internal election by the IEC.
(9) Article 109 of the constitution reads:
Proposals for amending the elections law shall not be included in the work agenda of the National Assembly during the last year of the legislative term.
(10) Article 90 of the constitution reads:
The National Assembly shall have the following duties: 1. Ratification, modification or abrogation of laws or legislative decrees; 2. Approval of social, cultural, economic as well as technological development programs; 3. Approval of the state budget as well as permission to obtain or grant loans; 4. Creation, modification and or abrogation of administrative units; 5. Ratification of international treaties and agreements, or abrogation of membership of Afghanistan in them; 6. Other authorities enshrined in this Constitution.
(11) Article 104 of the electoral law fleshes out the postponement and suspension of elections as follow:
1) In case, security situations, natural disasters and other similar conditions make impossible the principle of general and fair representation in holding elections and or undermine the credibility of the electoral process; the elections shall be upon the proposal of the Commission and endorsement of the Committee, comprised of the Head and members of the National Security Council, Chairmen of the two houses of the Parliament, Chief Justice of the Supreme Court, and Chairman of the Independent Commission of Oversight of Implementation of the Constitution of Afghanistan be postponed from the specific date for a period of up to four months.
2) In case, situation and conditions mentioned in paragraph 1 of this article are not resolved within the period of four months, the Committee may extend the mentioned period for a period of another four months.
3) Decision of the committee mentioned in paragraph 1 of this article is made by majority of votes of its members.
4) In case, situation mentioned in paragraph 1 of this article is limited to one or more electoral constituencies, the Committee may postpone holding elections in those particular electoral constituencies till the removal of those conditions and improvement of the situation.
5) In case, the elections are proved as defective in an electoral constituency, the Commission may order conducting new elections in that particular electoral constituency.
6) In case, elections are postponed or suspended, members of the elected bodies mentioned in this law, shall continue to serve in their positions until holding of elections and announcement of its results.
This article was last updated on 9 Mar 2020
Independent Election Commission