The Afghan constitution stipulates that the next parliamentary elections must be held before June 2015. Until a few days ago, however, most Afghan and international actors seem to have tacitly agreed that the constitutional date cannot be met. But during a conference on 16 November, the new president’s legal advisor stated that Ashraf Ghani is committed to upholding the constitution and with that the constitutional election date. AAN’s Thomas Ruttig and Ehsan Qaane look at the pros and cons of holding the elections on time, identify a number of significant hurdles – including the shortage of time for preparation caused by the unexpectedly long 2014 elections process and the need for electoral reform – but add that one more factor needs to be figured in: delaying the elections would mean bending the constitution another time. Let's talk turnout in the parliamentary election in Paktia 2010: polling staff, no voters, in the afternoon. Photo: Thomas Ruttig
According to the Afghan constitution, the next parliamentary election must be held between 23 April and 23 May. Article 83 stipulates that the vote must take place 30 to 60 days before the first day of the Afghan month of Saratan 1394; this date is equal to 22 June 2015. On that very day, the new MPs must meet for their inaugural session. (1) But there is a dilemma, as Abdul Ali Muhammadi – presidential advisor for legal affairs, one of the first new appointments by Ashraf Ghani – pointed out at a so-called advocacy conference organised by a civil society umbrella organisation (2) in cooperation with sitting parliamentarians on 16 November 2014. He said that postponing the elections would violate the constitution and the president is inclined to uphold it, but he also admitted that there “may be” some technical and political reasons to postpone the election, but there was no legal solution for this.
The time factor
There definitely are technical and political reasons for postponing the election. Until recently, there seemed to have been a tacit consensus among relevant election-related actors – from civil society to Afghanistan’s government and its international partners – that a postponement is inevitable. But this probably was mainly caused by election fatigue resulting from the drawn-out 2014 presidential and provincial election process. (And even its last formal step, the formation of the cabinet, is still pending.)
Meanwhile, it seems that opinions are starting to differentiate between both ‘teams’ in the national unity government. While members of the Abdullah team AAN spoke to claim that both leaders agree that there is no way around postponing the vote, some leading people in the Ghani team think that election reform can be done and the date upheld at the same time. Naturally, there also seems to be a greater urge to change the composition of the two electoral commissions – or sack all of their members – on the Abdullah team than on the Ghani team, which came out as the winning side. On the other hand, it cannot be taken for granted that Muhammadi spoke for the president here and that his statement has ended the discussion about the election date for good.
To prepare the elections on time, not much more than six months remain (if the vote is pushed as far as constitutionally possible, to 23 May). From this point, it already looks very difficult for the responsible electoral bodies to be able to meet this deadline. This can be concluded from this year’s presidential election that already needed much more time than originally planned; between the first round election day and the announcement of the final result, approximately eleven months passed – two more than scheduled in the official election timeline. The simultaneously held provincial council elections took one month longer. In comparison, the 2010 parliamentary election process started with the registration of new voters on 13 June 2010. The final results were announced five and half months later, on 24 November 2010 and ended on 26 January 2011 with the official opening of parliament by then President Hamed Karzai. That is more than seven months in total. With this experience, it simply cannot be assumed that everything in the election preparation will go smoothly – so even if the preparations for the 2015 parliamentary vote would start today (which it did not), holding elections by May looks very ambitious.
It must be noted, though, that the current post-election fatigue is no excuse for the poor state of preparation for the upcoming elections. The date has been well known. This year’s delay was partly the result of the failure to implement electoral reform (including making sure that the electoral institutions are neutral and perceived as so by all actors involved), and it was predictable as many previous elections had to be delayed beyond their constitutional deadlines. (3) “Technical” problems were often the excuse for the lack of political will to close loopholes – mainly for fraud – in the electoral system. Among other things, it has been known since the Constitutional Loya Jirga in 2003 that sticking to the crazy electoral calendar approved there under the eyes of dozens of international and Afghan legal advisors and election experts – with its three-year term for district councils, four-year terms for provincial councils and five-year terms for the president and parliament – is utterly unrealistic. It is also the reflection of thinking, mainly introduced by the US government and resisted by almost no one, that it is important to hold presidential elections – and put much less emphasis on the rest. Now these omissions have come back to haunt the country.
Increased workload and the need for electoral reform
There are two more reasons why holding parliamentary elections on time already seems unrealistic. First, there are district council elections (4) supposed to be held simultaneously, as President Ghani announced in his inauguration speech. Although stipulated in the constitution, Article 140, district council elections have not taken place after 2001, mainly due to financial and security problems. (5) Holding two such complex elections at the same time would also double the workload of the electoral bodies and everyone else involved, from candidates and their agents to observers.
Secondly, as this year’s elections showed, there is the urgent need for electoral reform. The fraud during this year’s elections and the way the electoral bodies dealt with it has damaged the public trust in elections and undermined the legitimacy of the electoral institutions. Recognising this, Ashraf Ghani, the later president, and Dr Abdullah, his later CEO, agreed in their 21 September national unity government pact to tackle this issue as a priority:
To ensure that future elections are fully credible, the electoral system (laws and institutions) requires fundamental changes. Immediately after the establishment of the government of national unity, the President will issue a decree to form a special commission for the reform of the electoral system in accordance with Article 7 of the Political Framework. Members of the special commission will be agreed between the President and the CEO. The special commission will report to the CEO on its progress and the Cabinet will review its recommendations and take the necessary steps for their implementation. The objective is to implement electoral reform before the 2015 parliamentary elections.
Although there has been some public discussion about the electoral commissions and the role of political parties, both sides have not yet publicly explained which aspects of the electoral system they plan to reform. The new government has so far failed to issue the announced decree on the formation of the Electoral Reform Commission. An earlier gathering of civil society organisations publicly flagged this problem on 10 November and called for inclusive consultations with all stakeholders.
As the last presidential and provincial council elections have made visible again, there is a whole list of problems that need to be solved. Many of these issues have been known for years, as the 34 consensus recommendations compiled by Democracy International (DI) in 2010 from “Afghan civil society organizations, international observer missions, assistance organizations, and independent election experts” show (see also this 2012 AREU paper):
– The appointment process for the electoral commissioners should be consultative;
– the ECC [now IECC] should be a permanent body and its authority and independence from the executive strengthened;
– both should be vested with more sanctioning authority;
– the IEC must establish a more sophisticated vetting process to ensure political impartiality of its staff;
– the ECC should adopt more open complaints processes;
– the list of polling locations must be finalised early in the process;
– the entry points of fraud must be investigated;
– strict consequences should exist for electoral offenses.
The list also contains some more long-term tasks:
– To conduct a national census, address the voter registry and consider the use of a civil registry as a foundation for a voter list;
– to rationalize the electoral calendar;
– to provide additional support for political parties and incentives for parties which engage marginalised populations such as youth, women and minority ethnic groups;
– to provide sustained support to domestic monitoring organisations;
– to overhaul the process for preventing candidates with links to illegal armed groups running for office;
– to adopt stronger campaign finance regulations.
The DI document also recommends reconsidering the use of the Single Non-Transferable Vote (SNTV) system: (6)
There is broad agreement that the Single Non-Transferable Vote (SNTV) system impedes the development of political parties and prevents fair and accurate representation of Afghanistan’s diverse population. A public consultative process should take place to solicit the opinions of relevant Afghan actors and international election experts to determine the best alternative system for Afghanistan. One alternative which has been consistently presented is a mixed SNTV-proportional system.
It is difficult, however, to imagine that the MPs will attempt to change a system under which they have been elected. The Wolesi Jirga has already once voted down a draft election law that included a mixed (SNTV plus party lists) system (see here) in summer 2013.
Parliament as a wild card
In fact, parliament has meanwhile started it own push for ‘electoral reform’. It is mainly taking aim at the two electoral commissions – the IEC and the IECC – and is pushing for changes of their compositions, or even firing and prosecuting all of them for their role in this year’s electoral fraud. The Lower House took up the issue in its plenary session on 25 October. There, MP Ghulam Hussain Nasiri from Maidan-Wardak province said, “The commissioners have violated the constitution by postponing the runoff election beyond the deadline stipulated by the constitution” and by failing to publish “the lists of eligible voters in each polling centre before Election Day.” MPs argue that with the current, fraud-tainted commissioners, the Afghan people would not participate in the next elections, and Nasiri’s explanation would give them a legal reason to push the commissioners’ prosecution. No MP has raised his or her disagreement so far in principle against firing the current commissioners.
Many MPs also take the position that particularly the IECC currently enjoys an “excess of authority”, as it makes the final decision on the (so far, regularly contested) election results. This issue has caused some of them, including the first deputy speaker of the house, Sediq Ahmad Usmani, to look at the possibility of installing an additional authority above the IEC and IECC – a committee or a special court – that would be able to rectify any possible mistakes or even manipulations committed by the commissions. It would also resolve possible disputes between the IEC and the IECC (as occurred during this year’s elections) and address serious complaints of candidates after the announcement of the final results by the IECC.
That MPs are making such a suggestion, however, is surprising as many in the house have been challenged by such a court in 2010 (then established by presidential decree; for more information see our dispatch here). There is also no guarantee the judgments of such a body would be accepted as final, as earlier elections have demonstrated. There is the chance that the house’s proposal will just convolute the Afghan electoral institutions even more instead of making them more independent and effective.
Parliament’s attack on the commissions appears to have at least two motives. First, it looks like a reaction to both of the commissions’ chairmen’s – Yusof Nuristani (IEC) and Abdul Sattar Saadat (IECC) – repeated refusal, during the election process and again in early November, to respond to summons by parliament. Both were arguing that parliament does not have the authority to question the commissions’ members, that responding to questions of parliament would put their independence in question or would give the MPs a tool to put them under political pressure.
The second motive seems to be that MPs want to stay in place beyond the official end of their legislative period in order to make it easier for them to get their supporters into the new IEC and IECC staff on the provincial levels. The previous elections have demonstrated that most of the fraud in the provinces has been committed by temporary IEC staff, and this has repeatedly been admitted by IEC chairman Nuristani. Additionally, the MPs – who under the current SNTV system are elected in province-based constituencies – can increase the relative authority of the provincial electoral bodies’ officials and staff, over which they will exercise more control and power when they are able to weaken the IEC and IECC on the national level.
During their 25 October debate, some MPs, like Mawlawi Rahman Rahmani from Balkh and Usmani Farahi from Farah, directly suggested postponing the election even if it violated the constitution. At the 16 November conference, other MPs adopted the same stance.
Their argument boils down to the claim that if the election were not postponed, the country would face another crisis. Then politicians would have to violate the constitution and other laws to figure out a solution, and, therefore, it would be better to violate the laws before any crisis arises than after. This, however, sounds more like a scare argument than a realistic scenario. (This year’s post-presidential election crisis was a countrywide one, as the constituency was countrywide; this is not the case in the parliamentary elections, which are based on provincial constituencies.) Rahmani took a rather pragmatic position by saying, “the law was violated many times in the past; it will not change anything if it will happen one more time.”
Additional homemade hurdles
The MPs, though, have already managed to bog themselves down in conflict over interpretations of several stipulations of the law and how to change them as well as over individual terms. The first one is related to a constitutional limitation of parliament’s ability to change electoral laws.
1) Is parliament in its “last year”?
Making, amending and approving laws are the most fundamental authorities of parliament. But there are two exceptions under the Afghan constitution: the parliament cannot amend the constitution itself – only a loya jirga can do this (Article 150) (7) – and it does not have the authority to amend the election law dar yak sal-e akher-e dawra-ye taqninia (“in the last year of its legislative period”; Article 109). (8)
Article 109, however, is open to interpretation, or, more precisely, what is meant by the phrase “last year”. When the Lower House debated ‘electoral reform’ on 25 October, some MPs argue that it means “the last twelve months before the term is over”. In this case, the “last year” already started on 31 Jauza 1393/21 June 2014, and they can no longer change the law. Others say “last year” means the “last calendar year” into which the term falls, that is, 1394 (beginning on 1 Hamal 1394/21 March 2015) – that is, they would still able to amend the election law before that date. Supporters of the theory that the last year has not started yet, like Shaikh Ghafari, very pragmatically raised the question, “Why do we bind our hands?” However, MPs have not taken up this issue again since the 25 October session.
2) What does “electoral law(s)” mean?
A second controversial issue is also still pending, namely which laws Article 109 – that bans parliament from changing the Election Law (singular in the original) – covers. Before the recent presidential and the provincial councils’ elections, parliament split the previous electoral law into the Election Law (EL) and the Structure, Duties and Authorities of the IEC and IECC Law (SDA Law) (our reporting here). It attempted to divide a substantive law (the EL) from a procedural one (the SDA Law). This has created confusion over whether Article 109 now covers just the Election Law or both laws. If the latter is true, parliament would also be barred from amending the SDA Law.
Both from the logic on which the limitation in Article 109 is based – to avoid having parliament change the law in its own interest – and the provisions of the previous Election Law, it follows that parliament is not allowed to amend the SDA Law as it is not allowed to amend the EL. Nevertheless, on 4 November, MPs voted – in principle, not in detail – that they will change the SDA law and tasked the house’s Judicial Commission to draft amendments. But the commission has also not worked on this since then.
There is another hurdle that might prevent MPs from changing the composition of the IEC and the IECC: the SDA Law stipulates a six-year mandate for the commissioners. The IEC commissioners were appointed on 29 July 2013 and the IECC commissioners on 16 September 2013, so that their regular terms would not end until 2019. The conditions for an early removal, as given in Article 10 of the SDA Law, are tight (9) and leave only two ways open: to impeach the commissioners for crimes, for example, against the electoral law, or to amend or completely remove the mandate term from the law.
What can easily be overlooked in all these controversies about detail is the fact that what MPs call ‘electoral reform’ is actually very limited, aiming primarily at getting rid of the electoral commissioners. So far, the Lower House has not indicated that it is planning to address the deeper structural problems in Afghanistan’s electoral system that have been indicated above. AAN also has repeatedly reported about earlier failures of parliament to address key issues of electoral reform (for example here and here). We have also shown how earlier attempts to reform electoral laws have not only led to “drafts [and later passed bills] that are full of technical errors and internal inconsistencies” but also that parliament had passed changes it did not realise were made, as in the case of dropping the 25 per cent women quota for the provincial councils (read here). It must be suspected that the current attempts to ‘reform’ might lead to even more inconsistencies and confusion but not to an improvement of the legal situation.
Which results would an amendment lead to?
Amending the SDA Law now (not to mention the Election Law), with only half a year to go until the parliamentary election, would trigger a chain reaction of follow-up measures that will cost a lot of time and jeopardise the timely holding of the elections: figuring out a way for firing the current commissioners, agreeing on a new text for the law, selecting new commissioners who then would have to familiarise themselves with their new tasks – as they will lack experience even if they are election specialists (which cannot be necessarily assumed) – and organising their internal proceedings. If all of this is done, new staff for the provincial commissions need to be vetted, recruited and trained.
The way ahead
On electoral reform, there are two issues to watch in the coming weeks. The first one is whether parliament will move unilaterally to amend the electoral laws and enable itself to change the composition of the electoral commissions. And, if that happens, how will the president react as he, so far, has had the unchallenged authority to appoint the IEC and IECC commissioners. (The 2013 changes in the SDA Law have limited this somewhat by creating a selection committee that prepares a shortlist. The last decision, however, still remains with the president; see here). (10)
The second issue is how soon the new government will make its position known and how far its reform steps will go. There is also the possibility of electoral reform through other means. Irrespective of how discussions in parliament end about whether it is in its last year or not and whether the SDA Law is a part of the Election Law or not, the law(s) can still be amended by presidential decree.
Article 109 of the constitution only prevents parliament from amending the election law in its last year, but not the president. Such decrees are treated like ‘normal’ laws – unless parliament rejects them. A time slot for this would be parliament’s upcoming winter recess, scheduled to begin on 21 January 2015 (1 Dalw 1393). (This method is covered by Article 79 of the constitution.) (11) Parliament might not even be unhappy if it happens that way, provided the president takes its interest into consideration. This also seems to be the solution preferred by many in civil society.
Almost regardless of how all these open questions will be answered, by parliament and the executive, the basic dilemma remains: it has become almost impossible with only six months left until the latest possible constitutional election date to hold parliamentary and district council elections on time as well as to reform the electoral laws in a way that most structural problems can be removed and better elections guaranteed for the future. But proponents of a comprehensive reform – the need for which has been exacerbated by the outcome of two messy electoral cycles – also face a dilemma if they also want to protect the constitution and the provisions in it for the election date. Basically, genuine reform is only possible if its proponents are ready to bend the constitution again. Ironically, it is the MPs – who, as legislators, should be the last ones to propose this ‘solution’ – who seem to be most inclined to do this.
The political process, starting from 2001, has shown that often the ‘pragmatic’ but unconstitutional approach has ultimately been chosen to make elections possible at all – only to add more problems to following elections. The election year 2014 has demonstrated this clearly. The pragmatic question is: Would another unconstitutional election delay be more harmful than pushing through elections and electoral reform in the remaining short timeline? The more principled question would be: How many more times can the Afghan constitution be bent before it breaks?
(1) Article 83: “[…] the work period of the Lower House shall terminate, after the disclosure of the results of the elections, on the 1st of Saratan of the fifth year and the new parliament shall commence work. The elections for members of the Lower House shall be held 30-60 days prior to the expiration of the term of the Lower House.”
(2) The Afghanistan Civil Society Elections Network (ACSEN) is an umbrella of 141 civil society organisations working in the field of elections, including election observation, media and human rights groups.
(3) Article 160 of the Afghan constitution stipulates, “Every effort shall be made to hold the first presidential election and the parliamentary election at the same time.” However, since 2004 – when the parliamentary election was delayed to 2005 and only the presidential election held – both elections have not been held simultaneously (2009/10 and 2014/15).
(4) Afghanistan officially has 368 districts, but there is a number of non- or semi-official districts bringing the number to over 400. Therefore, there is the need to clarify the number of and demarcation between districts, which also had been mentioned in the national unity government agreement.
(5) According to the constitution, the members of the district councils must be elected in public and secret elections for three years, which adds even more complexity to the already full Afghan electoral calendar. The existence of these councils is a strong condition for holding a loya jirga; one is planned – also based on the national unity government agreement – within the coming two years to decide whether changes in the government structure included in the same agreement (like the new CEO/prime minister position) will be kept or abolished again. Almost half of the loya jirga members, 364 of 749, come from these district councils, based on Article 110 of the constitution. That they have not been elected was an argument used by those who questioned the legitimacy of a number of loya jirgas convened by former President Karzai.
(6) Under the Single Non-Transferable Vote system, each voter casts one vote for a candidate but there is more than one seat to be filled in each electoral district. The candidates with the highest vote totals fill these positions. There are no lists of parties or otherwise. According to the Democracy International paper already quoted, SNTV “impedes the development of political parties in Afghanistan and prevents fair and accurate representation of Afghanistan’s diverse population”.
Indian journalist (and long-time Kabul correspondent) Aunohita Mojumdar, in a 2010 comment on AAN describing the SNTV, added the following remark:
[T]he political electoral system in Afghanistan should not be described just as the SNTV because that is almost letting it off the hook. What it does is combine two very different political systems with different requirements – the multi-seat constituency of party list systems [just without parties – AAN] with the SNTV of a multi-constituency system. As you probably know this particular and peculiar combination is replicated only in two other places in the world – the Pitcairn Islands and Vanuatu according to DI. This makes the absurdity of the electoral system even clearer. It also make clear the fact that Afghanistan’s current electoral system was not just one among many common electoral systems that Afghanistan could have adopted, but that those in decision-making chose an extremely obscure system specifically and deliberately in order to prevent political consolidation and political parties from growing, which, as you point out, is a sine qua non of a functioning democracy. Not mentioning the two conjoined contradictions is giving the system and those responsible for it too much credit.
(7) Article 150:
To process the amendment proposals, a commission comprised of members of the Government, the Parliament as well as the Supreme Court shall be formed by presidential decree to prepare the draft proposal. To approve the amendment, the Loya Jirga shall be convened by a presidential decree in accordance with the provisions of the Chapter on Loya Jirga. If the proposed amendment is approved by majority of the two third of the Loya Jirga members after the endorsement of the President, it becomes enforceable.
(8) Article 109: “Proposal for amending the Elections Law shall not be included in the work agenda of the Parliament during the last year of the legislative term.”
(9) Article 10 includes a number of conditions for an early removal of the commissioners, including severe illness, absence without justification, joining a political party or being sentenced for a crime as well as offense against Article 13 of this law:
The members of the commission, when making decisions, must protect the national interests, the contents of the constitution, the Election Law, this law and all endorsed laws, and must avoid any kind of ethnic, regional, language, political and religion discriminations.
(10) The committee is comprised of the chairpersons of the Wolesi Jirga and the Meshrano Jirga, the chief justice, the heads of the Independent Commission for Oversight of the Implementation of the Constitution (ICSIC) and the Afghan Independent Human Rights Commission (AIHRC), and one member selected from the civil society organisations working on elections.
(11) Article 79:
During the recess of the Parliament, the Government shall, in case of an immediate need, issue legislative decrees, 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.
This article was last updated on 9 Mar 2020