President Karzai has changed the electoral law, driven by anger over an in his eyes over-interfering ECC, the desire to have a pliable parliament and a sense that it his right as a president to be in charge. The substantive changes in the electoral law have, as a result, focused on roughly four areas: gaining greater control over the main exclusion mechanisms (the ECC and the DIAG secretariat), minimizing international interference, limiting the grounds for criticising the IEC, and raising the bar for conditions on candidates.
The aim of the changes is obvious: a smoother, less tumultuous election and greater government control over the process, including who gets elected. There is no level playing field, nor is there any inclination to have one.
These are in short the most salient features of the new law:
(1) The changes that have attracted most attention in the press have been those surrounding the Electoral Complaints Commission (ECC). The initial draft law described how the ECC would be comprised of five members suggested by respectively the President, the Upper and Lower House, the Afghan Independent Human Rights Commission and the Supreme Court, with the latter being appointed as chair of the commission. The current text however has done away with the formula of who appoints the members and simply states that the commission will be established by the President in consultation with the chief justice and both speakers of parliament (article 61 sub 1). A verbal agreement between the President and SRSG Kai Eide that the commission will include two international members, may or may not be upheld by Karzai. It has however in the current composition become largely irrelevant, as the internationals, if they are appointed, will be outvoted by the other three members.
This new composition has sent alarm bells ringing throughout the international community, as in their eyes it had only been the presence of internationals in the ECC that allowed the commission to withstand the pressures and to salvage a traumatically problematic election. The Afghan government, however, saw the interventions of the ECC, and in particular of its international members, as politicized and interfering. So Karzai, still upset by what he considered a personal and very public attack, was determined not to allow this to happen again. It has thus become a battle of wills and the prize is control over the election. It is very clear, Karzai does not want to be called to account again. And neither does the IEC, as we will see in the next para.
(2) What has gone largely unnoticed is that all articles relating to IEC conduct have been removed from the law. This concerns in particular articles 9 and 10 in the old law, which refer to respectively the impartiality of the IEC and its commitment to confidentiality; and the various recruitment restrictions. These articles have not been replaced by comparable provisions, other than an article generally referring to the need for non-interference by government officials in electoral affairs. This means that IEC staff is no longer bound by law to perform their duties in an unbiased and impartial manner, that they are no longer precluded from taking instructions from any authority other than the director of the IEC secretariat, and that there are no longer any provisions that preclude the recruitment of party leaders or relatives of candidates as electoral officials. The removal of these articles seems aimed at protecting the IEC from legal prosecution.
Unsurprisingly, but it needs to be mentioned nonetheless, is the failure to change the composition of the IEC, in particular the fact that the IEC is appointed in full by the President. Although recent lobbying by the international community has focused on the need to change this particular IEC leadership, and especially its head, this does not change the fact that a new presidentially appointed IEC leadership is likely to be as biased as the current one (although possibly, but not necessarily, less blatantly so).
Instead of addressing the fact that the country’s “independent” electoral body is appointed by the President, the new law now ensures that the watchdog body – the ECC – is appointed in the same problematic way.
(3) Another change that has gone largely unnoticed is the law’s new provision on the allocated seats for kuchis. The kuchi issue plunged the Wolesi Jirga into crisis in 2008 when a large number of non-Pashtun MPs boycotted the session for several weeks. The argument centred on whether kuchis should be allowed to treat the whole country as a single constituency – i.e. whether they could vote wherever they wanted – but underlying this was a more fundamental issue. Non-Pashtun MPs felt that the allocation of ten reserved seats gave kuchis an unfair advantage over other groups and, although this was not necessarily articulated, that it provided the Pashtun bloc with a guaranteed ten extra votes in any parliament. The clashes among Hazaras and kuchis over the use of pastureland inflamed the controversy and the parliament was forced to refrain from further discussing the law.
The law that has now been passed does not change the controversial articles – the kuchis keep their ten allocated seats in parliament (article 19) and can still treat the whole country as a single constituency (article 9 sub 2) – but adds controversy and confusion by stipulating that there should also be reserved seats for kuchis in the provinces where kuchis travel (article 28 sub 2). This will of course be highly unpractical – how is one to determine how many seats to give and where to give them – but it will also fuel allegations of Pashtun favouritism (although there are also non-Pashtun kuchi groups, they are unlikely to be able to compete with the larger groups).
(4) There has been considerable confusion and early outrage over suggestions that the draft electoral law sought to limit the number of women MPs in the Parliament. This was not the case, although the ambiguous and somewhat clumsy language of the draft, particularly in the English translation, and the inclusion of the word ‘maximum’ instead of ‘at least’ suggested that there would be less women’s seats. The current wording (article 19) is slightly more clear, stating that a maximum of on average two seats per province shall be allocated for women, which is the current practice.
(5) The bar for candidates to run in the various elections has been raised (article 43), although not as much as was envisaged in the original draft. Education requirements have been added for mayors and provincial, district and municipal council candidates (12th grade), but interestingly not for the president or parliament, while village council candidates have to be able to read and write (article 12). The number of voter card copies that prospective presidential and parliamentary candidates have to supply has been raised to 100,000 for presidential candidates (it used to be 10,000) with at least, the text seems to suggest, 2,000 in 18 provinces; and 1,000 for parliament (used to be 300). The height of the deposit for presidential candidates is now the equivalent of $5,000 – OOPS THAT WAS A MISTAKE IN THE TRANSLATED TEXT, IT IS ACTUALLY THE EQUIVALENT OF $50,000 – (it used to be $1,000, but the initial draft suggested $100,000), while the other deposits have been raised from $200 to $600 for parliamentary candidates; from $80 to $400 for provincial council candidates; and from $40 to $200 for district council candidates. Municipal and village council candidates now pay respectively $200 and $100, which are hefty sums at that level, while prospective mayors pay between $300 and $2,000 depending on the size of the municipality.
The government has also increased its control over the exclusion of candidates with regard to the only exclusion clause that has been frequently applied: links to illegally armed groups. Where in the past the evaluation was done by a joint commission that was linked to the country’s disarmament programme, it will now be done by a commission comprised of representatives of the MoD, MoI and NDS (article 12 sub 7). The exclusion of candidates for links to armed groups (or the failure to exclude certain candidates despite relevant evidence) has always been prone to manipulation and pressure, even when monitored by international members of the commission. This is only likely to increase now that they have been removed from the process.
(6) Finally, there has been an on-and-off push by political parties and segments of Afghan civil society to change the current electoral system, the single non-transferable vote (SNTV), in favour of a system that gives greater prominence to political parties and other political groupings. There is a broad consensus among observers and analysts that the SNTV system seriously undermines the prospects for a more politically coherent parliament. The electoral law however does nothing to change this.
(7) It is, all in all, becoming increasingly difficult to come up with suggestions or demands for measures that will ensure the transparency of the electoral process and that have a chance of being seriously implemented. The needed changes are obvious and have, among others, been raised again by FEFA in their most recent press statement: (1) reform of the methods of appointing the IEC leadership and policy units, reform of the IEC working procedures and reform of its hiring policies; (2) criminal investigation of IEC staff that has facilitated fraudulent acts; and (3) development and improvement of the ECC as a mechanism to address complaints and violations.
Everything is however pointing in a different direction. The government and the IEC are gearing up for a series of elections that are as controlled as possible, and with as little fuss as possible. The ultimate goal is the formation of pliable representative bodies and the consolidation of a ruling family.
In the meantime candidates are getting ready for the next round: the Wolesi Jirga elections. They are gathering voter card copies for their registration, are assessing whether they have the money they need, are gauging the support in their areas and are preparing for fraud. Some will link themselves to the government apparatus, while others will hope to outsmart them or to buy the services they need. The struggle for a cleaner election has for the moment been lost. We need to think hard how to deal with that.
P.S. The reaction of the US has been quite mild (“We are supportive of the Afghan government stepping up and assuming its responsibilities for its own process”). Probably looking forward to a less tumultous election too.
This article was last updated on 9 Mar 2020