Afghanistan Analysts Network – English

Political Landscape

Electoral Reform, or rather: Who will control Afghanistan’s next election?

Martine van Bijlert 15 min

President Ghani and Chief Executive Officer Abdullah, in the September 2014 agreement, agreed to electoral reforms “to ensure that future elections are credible.” The details of these reforms, when they should take place and who should design them are, however, proving contentious. Meanwhile, parliament has been working on relevant laws, while commissioners of the Independent Election Commission (IEC) are fighting off calls for them to be replaced while insisting that, at this point, they are the only ones who should be making changes to improve future elections. Although everyone is talking about ‘reform’, the wrangling really boils down to a struggle for control of the electoral bodies and, ultimately, the outcome of upcoming elections. AAN’s Martine van Bijlert and Ehsan Qaane report.

Photo: Martine van Bijlert

A reform process pulled into different directions

The National Unity Government agreement (full text here) is quite clear that “to ensure that future elections are fully credible, the electoral system (laws and institutions) requires fundamental changes” [emphasis added] and “that the objective is to implement electoral reform before the 2015 parliamentary elections.” It does not however spell out what these reforms should entail, other than that the president will appoint a special commission who will report to the CEO.

According to the National Unity Government document, the president should issue a decree “immediately after the establishment of the government of national unity” to establish a “special commission for the reform of the electoral system.” The text of the agreement gives no further details, other than that the commission would report to the CEO on its progress and present its recommendations to the cabinet for review and implementation. The president has so far, however, shown very little urgency in carrying out this pledge.

The establishment of the commission was, first of all, said to be postponed due to the delays in forming the cabinet. Nazifullah Salarzai, at the time still spokesperson of the president, told AAN in late January 2015:

What I can say is that an official commission should be established. This commission will be in charge of reforming the electoral system. But right now our priority is the cabinet formation; establishing this commission is the next step.

In the meantime, the Abdullah camp had started accelerating its own efforts to speed up the process. A group started discussing possible amendments to the Election Law (EL) so they could present them to the special commission once it was established. Fazl ur-Rahman Uria, a senior member of the team, told AAN on 22 January 2015 that they were preparing two proposals: one that amends the electoral laws and strengthens the anti-fraud mechanisms, but leaves the electoral system intact, and a second, more far-reaching proposal that includes the replacement of the current electoral system – a rare form (multi-seat constituency) of the, in itself rare, Single Non-Transferrable Vote (see also here) – by a mixed electoral system, partially based on proportional representation. The latter amendment has been a recurring discussion over the last few years, but does not seem to be at the forefront of the debate at the moment. (1)

At the same time, parliament started amending relevant electoral legislation, in a process that was heavily tilted towards the Abdullah camp thanks to the composition of both the judicial commission – its head, Haji Abduh, is close to CEO deputy Muhammad Mohaqeq – and the leadership committee that discusses all suggested amendments.

On 5 February 2015, in an apparent move to regain the initiative, the president tasked his own second Vice-President, Sarwar Danesh, to consult with the IEC and civil society on electoral reform issues. The  statement makes no mention of a special commission or a role for the CEO and only says that: “after consultation with the civil society, political parties and electoral experts, the necessary reforms will be served.” (2) The Abdullah camp, unsurprisingly, was not amused and stressed that if reforms were not prepared according to the political agreement, ie through a joint process, the whole national unity government would lose its meaning. Several members of the team called on the president to appoint the commission as soon as possible.

On 9 February 2015, the CEO’s team announced that they had selected their representatives for the special commission and were now waiting for the president to do the same. (4) This is becoming a familiar pattern: in the early stage of the cabinet formation, people from Abdullah’s circle similarly insisted that their candidate lists had long been ready and that they were waiting for the president’s side to make up its mind. The selection of the three proposed commission members seems based on the principle of internal ‘parity’ within the CEO’s team:  Muhammad Nateqi, who was recently also appointed adviser for religious affairs to deputy CEO Mohaqeq; Eng Muhammad Asem, an MP who is close to both Abdullah and Qanuni; and Dr Anwar who is head of the political committee of Arghanidwal’s Hezb-e Islami and must be deputy CEO Eng Khan Mohammad’s pick.

Abdullah’s team is working on the assumption that the commission will be made up of three members each from both camps and three representatives of civil society, but the president’s circle has still not confirmed that it intends to uphold this part of the agreement. Presidential spokesman Ajmal Abedi told One TV on 14 February 2015 that Vice-President Danesh had just finished his consultations with civil society and election experts and that the president, based on those findings, would “soon decide on how the electoral reform commission should be established” (dar bara-ye chegunegi-ye ijad-e kamisyun). Eng Muhammad Asem (from Abdullah’s side), stressed that the commission should be established soon, so it could still present its proposed amendments in time for the president to issue a decree before parliament reconvened (for an earlier, legal analysis of issuing decrees during recess, see here). The parliament’s recess is scheduled to end on 14 March 2015 (it had officially been 6 March, but the recess started a week late because MPs stayed on to vote on cabinet ministers).

The reform attempts by the parliament

The parliament in the meantime has worked on the law for the Structure, Authorities and Duties of the Electoral Bodies (SAD) as well as a few articles of the Electoral Law. Although there is a constitutional ban on amending the electoral law in the last year of the Wolesi Jirga term (which ends on 22 June 2015), the MPs decided on 5 November 2014 that this did not preclude them from working on the SAD law – arguing that the Constitution does not mention this particular law by name. The joint commission started its work on 6 January 2015. It had hoped to finalise the amendments before the recess, but did not manage to reach a consensus (thanks to one dissenting MP from Khost). This means that the contested amendments now need to be presented to the plenary session, for discussion and approval, after parliament returns.

The judiciary commission has proposed amendments to 22 of the 35 articles of the SAD law. If passed in this form, if will be the first law recognising the role of the CEO – a temporary position, which means the law will need to be amended again ahead of the next election. Otherwise, the main suggested changes relate to the appointment and accountability of electoral officials. Several of them are retractions of changes made in 2013.

If passed, the selection committee for IEC and IECC commissioners, introduced in 2013, would be removed again and the appointing authority given back to the president “with the agreement of the CEO,” followed by a parliamentary vote of confidence. Electoral commissioners would need to provide quarterly reports to the Lower House. The Independent Electoral Complaints Commission (IECC) would go back to being a temporary body, to be established 120 days before the election, apparently because many MPs felt its permanent status had made it over-confident and difficult to control (they would have probably liked to do the same with the IEC). Criteria for commissioners’ appointments, as well as grounds for dismissal have been added. Most of the suggested amendments seem aimed at limiting the independence – or uncontrollability – of both commissions. In contrast to 2013, when the parliament and large parts of the political class were preoccupied with curbing the influence of the sitting president over the electoral bodies, there now is an emerging tug of war on who can appoint and hold them to account.

In addition to working on the SAD law, the Lower House also amended to three article of the Election Law on 28 January 2014, before the start of the winter recess. The MPs argued that because they had started amending these articles before the beginning of the final year of the parliament, they were not violating the constitution by making these particular changes now. (3) The amendments include the raising of the requirements to run for parliament (bachelor degree or one term as an MP or Senator), which seems designed to weed out the competition for sitting parliamentarians who may want to run again.

There is, incidentally, no clarity on whether the parliament’s reading of the Constitution, on both counts, is correct or whether it will be accepted. Other than the IEC and the IECC, nobody has shown much response to their decisions yet either way, as most sides will probably want to see the outcome of the amendment discussions first, before deciding whether the process was admissible or not.

The position of the electoral bodies

The IEC and, to a lesser extent, the IECC have reacted strongly to the calls for far-reaching reforms, the suggestion that the government should be in the lead, and the parliament’s on-going tinkering with the electoral laws. (4) While acknowledging there were problems during last year’s elections, the commissioners argue that the blame does not lie with them, but rather with the difficult circumstances, and that they actually did a rather good job – as illustrated in this interview on Tolo TV on 7 February 2015 (quoted from BBC Monitoring):

IEC commissioner Aziz[ullah] Bakhtiari, when asked about the need for reform of the IEC itself and the alleged fraud in the presidential elections in 2014, also said: “In my interviews with media outlets, I have said fraud has undoubtedly taken place in all elections in Afghanistan, but in terms of the number of votes and the invalidation of votes, the presidential elections in 2014 went better than all previous elections.” He said they succeeded in invalidating more than 800,000 fraudulent votes and carrying out a complete assessment of all the votes, something which, he said, did not take place in the past. Commenting on the reasons behind election fraud and praising the performance of the IEC, Bakhtiari said: “Unfortunately, elections in Afghanistan are still not transparent and fraud takes place. But it is important to know the reasons and factors behind fraud and the election commission is not the only factor. The situation in our country is such that a completely transparent poll is impossible.”

In response to calls for reform, commissioners insist that they will take care of all necessary changes themselves and that any interference will both damage the independence of the electoral bodies and politicise the reform process. Again, commissioner Bakhtiari, in an interview with Arzu TV on 7 February 2015:

Now the government is trying to bring reforms, which is illegal. The government does not have the authority to interfere in the election commissions. I 100 per cent agree that the election commissions should be reformed, but as far as the technical reforms are concerned, the commission itself should bring this reform. With regards to the legal reforms, the lower house of parliament should do this, in its due time.

One of the reasons for the commissioners’ strong reaction is that they have come to consider “electoral reform” a code for their own dismissal – and not without reason. Abdullah’s camp has indeed been adamant that the replacement of the commissioners is an essential part of the necessary change. As CEO deputy spokesman Asef Ashna told One TV on 3 February 2015:

No elections will be held until these fundamental reforms take place and the reforms include the dismissal of the commissioners of the election commissions, who have upset the elections and who are responsible for damaging the people’s trust in a democratic process.

IEC head Yusuf Nuristani, in response, said he had no intention of resigning, given that he had done nothing wrong, while commissioner Sarir Ahmad Barmak, in an earlier interview, stressed that nobody, including the President, could fire them unless it was proven that they had committed a crime. (5)

The CEO’s side has so far, unsurprisingly, completely ignored the electoral bodies when preparing its reform proposals (although it does, of course, benefit from the experience and knowledge of former IEC head Fazl Ahmad Manawi). The president’s camp, on the other hand, has met with the IEC members and has received their proposals for reform. There does not seem to have been any substantive discussion so far between the Abdullah and Ghani’s teams.

What is at stake?

The issue of what electoral reform should look like, when it should take place, with how much urgency and by whom, is dividing the government. This is a direct consequence of the different way that the two halves of the national unity government look back on the previous election. According to the Abdullah camp, their victory was stolen through mass interference by partisan electoral bodies, which is why they insist the commissioners should be replaced, the way they are selected changed and the level of accountability of (or control over) the electoral bodies increased. The Ghani camp on the other hand insists that fraud was both limited and adequately dealt with through the electoral audit. There is, as a result, a marked reluctance within the Ghani camp to make substantial changes ahead of the upcoming vote, in particular when it comes to replacing the IEC and IECC commissioners. Making such changes would look like an admission that the electoral bodies were indeed implicated in a fraud-tainted result, which would in turn weaken the position and legitimacy of the president. It would also mean the replacement of commissioners that are, and have been, to a large extent on his side, which could leave the field open for the Abdullah camp, and other emerging political networks, to gain influence in the electoral bodies.

The upcoming parliamentary elections are important for both camps – as well as for several groups currently ‘outside’ the government, such as former president Hamed Karzai and his circle, the self-proclaimed disgruntled mujahedin and the growing group of irate Abdullah supporters (who feel he has not been enough of a champion). All sides will try to secure a large presence in the new parliament, so they can use its potential for pressure politics (and prevent the parliament’s power from being used against them).

Second, and possibly more importantly, the parliamentary and district council votes will elect the pool of people from which over 85% of the voting loya jirga delegates will be drawn. (6) The loya jirga, in turn, will decide the country’s future system of government. For Abdullah’s camp and all others for whom a prime ministerial system has long been a dream, a strong showing at the loya jirga will be key. The same is of course true for those who want to keep a centralised presidential system. Moreover, the calling of the loya jirga will mean the end of the national unity government and the temporary position of CEO. The stakes, in short, are higher than ever.

Planning the next elections

According to the Constitution, the upcoming parliamentary elections should be held between 22 April and 22 May 2015 (article 83). But to state the obvious: practically, this is no longer possible. Preparations have not been made, funding has not been secured, and there is no longer enough time for candidates to be registered or for campaigns to be held. It would also violate the electoral timeline, which stipulates that an election date needs to be announced 180 days in advance (Electoral Law, article 43). (7)

Despite it being obvious that the upcoming elections will be postponed, there are still politicians and commentators who, in talk shows and newspaper articles, demand that they should be held on time to safeguard the credibility of the elections (see for instance here). This, however, should be seen in the context of the on-going political wrangling between the Abdullah and Ghani camp. Already in the run-up to the 2014 elections, Abdullah and his supporters had consistently stressed the need for reform and fraud mitigation, while Ghani and his supporters had tended to respond by insisting that existing laws and timelines and timelines be respected. The veneer of respectability and logic on both sides – then and now – does not hide the fact that the arguments have been fairly consistently self-serving.

Although it is clear that the elections will not be held on time, all sides have so far been coy about a possible new date. The IEC has indicated  that the elections will need to be delayed by three to four months, mainly blaming a lack of funding and the absence of instructions from the executive. But this is also an overly optimistic scenario, particularly if the IEC intends to hold simultaneous Wolesi Jirga and district council elections, which would complicate preparations.

Similar plans to hold district council elections alongside other elections have been abandoned in the past, largely because of practical complications: district boundaries are not clear, seats need to be distributed according to incomplete population statistics, and the number of districts remains obscured by temporary and informal districts. Holding district council elections will also be a massive undertaking. Hundreds of thousands of candidates may be competing for several thousand seats (each district will given between 7 and 15 seats, depending on the population, and there are 376 districts – if also counting the 11 temporary ones).

During earlier elections, the district councils did not seem that relevant. That has changed, with the NUG commitment to holding district council elections to ensure the loya jirga’s quorum. This means, on one hand, that the IEC and the authorities will try harder to make them happen than was the case in the past. But it also means that all necessary administrative decisions, such as those involving boundaries and population statistics, are likely to be highly politicised. The practical difficulties in organising district council elections may also come in handy later, in case all sides agree to call the loya jirga off all together (a unilateral decision by the president would be highly controversial).

What next?

Both the Abdullah and the Ghani camps say they want to bring reform. Although the president seems to be stalling, he has not (yet) rejected the establishment of the special electoral reform commission. There now seem to be several avenues open to him. These include appointing the joint special commission according to the National Unity Government agreement (which will probably take a long time, given the need to agree on everything) or, alternatively, issuing a decree based mainly on the recommendations of the second vice-president and the IEC (which would be highly controversial). Advisers to the Ghani camp may in the meantime try to influence the parliamentary discussions on the electoral laws, while keeping the option open of ultimately dismissing its decisions as unconstitutional, if the outcome is considered undesirable. The IEC, in turn, may display the same bullishness as during the presidential electoral process, possibly nudged by the president’s camp, and announce an election date that precludes a serious reform process.

Ultimately, the main problem is that even if all sides were operating in good faith, it would still be difficult to come up with realistic suggestions for reform that would result in elections that are less controversial. The difficult conditions and the near-universal lack of checks on the actions of all sides, means that it has become practically impossible to prevent mass fraud, or to ensure that the electoral bodies adequately deal with it, once it has occurred. The disagreements on what electoral reform should look like, as a result largely boil down to a tug of war over who controls the electoral bodies – and through them the election’s outcome (it is, after all, the IEC and IECC who decide when, in the protracted post-vote period, the messy vote has been sufficiently counted and audited).

 

(1) A similar suggestion came out of the IEC in mid-June 2012. The proposal to change the electoral system has been supported by most political parties since SNTV was first employed in the 2005 parliamentary election.

Under the Single Non-Transferable Vote system, each voter casts one vote in a multi-seat constituency. There are no party lists, only individual candidates. Because of the large number of candidates this can lead to freak results, depending on how well constituencies manage to spread their votes. A large constituency that overwhelmingly votes for one candidate can end up with only one seat in parliament or on the council, while minority groups who spread their votes well can end up sweeping the local election. This is often exacerbated by mass disqualifications of votes.

(2) The full text of the statement dated 5 February 2015 (original can be found here):

Mohammad Ashraf Ghani, President of the Islamic Republic of Afghanistan is committed to reforms in Afghanistan’s electoral system, and has tasked the 2nd Vice-President Mohammad Sarwar Danesh to, in consultation with the IEC and civil society, identify the areas required for reforms.

The President’s office has received the civil society’s proposal for reforms, and after consultation with the civil society, political parties and electoral experts, the necessary reforms will be served. In his recent meeting with Afghanistan Independent Election’s officials, President Ghani has asked them to come up with a package of recommendations so that the relevant reforms could effectively and transparently be injected to the election system.

Describing the reforms in IEC as his priority, President Ghani urges that the required steps in this regard will be taken soon.

(3) Article 109 of the Constitution states that “Proposals to amend the electoral law shall not be included in the agenda of the Assembly during the last year of the legislative term” which can indeed be read in different ways.

(4) See also the IEC’s angry response to an interview by EU Special Representative Franz-Michael Skjold Mellbin on Tolo TV in which he stressed the need for electoral reform ahead of the elections (the IEC seems to have mangled his quote in their haste to respond):

IEC Press Release with reference to the Recent Statements of Mr. Francis Michael Milibon [sic], Ambassador of European Union to Afghanistan Kabul, Afghanistan, February 3, 2015

Recently, Mr. Francis Michael Milibon [sic], Ambassador of EU to Afghanistan had an interview with one of the private media in which he said: “It can’t be imagined to conduct upcoming elections in existence of the current management of the Electoral Commissions and the existing practices” [sic]. The IEC considers these statements of Mr. Milibon in contradiction with all diplomatic norms and parlance and an obvious intervention in the election affairs of Afghanistan.

It should be stated that the European Union cooperated closely with the IEC and has observed and supported all elections technically and financially during the last decade; expressing such statements not only causes to ignore the independency and impartiality of the IEC but also adds to the confronting challenges of the national process (elections) in Afghanistan.

Under Article 156 of the Afghan Constitution, the Independent Election Commission (IEC) has been established to administer and supervise any kind of election and referring to referendum in the country. Any change in this organization necessitates observing provisions of the effective laws in the country. The IEC seriously asks all honorable Afghanistan based diplomatic organizations and other political groups of the country not to damage the electoral entities and destiny determining national electoral process by expressing such statements and actions behind which there are other political purposes.

(5) IEC commissioner Sarir Ahmad Barmak, who is widely considered pro-Abdullah, in another interview gave a slightly differing view on whether the IEC did a good job during the past election, possibly suggesting that some of the commissioners should indeed be removed:

We were not the managers of the elections, we were observers. We were taken advantage of; our trust was broken on the secretariat level, commission level, and provincial level. And when my trust and other commissioner’s trust were taken advantage of they must be held accountable. And now when a failed leader starts something new, despite the unresolved crisis, the result will also be another crisis in the making.

He is probably treading a fine line between maintaining the Abdullah line that the IEC and IECC orchestrated a fraudulent election, while safeguarding his own position by stressing that crimes must be proven first.

(6) The loya jirga, according to article 110 of the Constitution, would seem to consist of 761 voting delegates: 249 MPs and 102 Senators, making up a National assembly of 351; 34 provincial council chairs and 376 district council chairs (if also counting the 11 temporary districts). Ministers, the chief justice and members of the Supreme Court will participate in the sessions, but will not have the right to vote.

The 34 provincial council chairs and the 34 provincial council Senators have already been elected, in last year’s contentious election. Another 34 Senators are directly appointed by the president. This leaves 659 delegates who will be, directly or indirectly, elected in the upcoming elections: 249 MPs, 376 district council chairs and 34 district council senators.

Provincial council chairs are elected every year (the Constitution is silent on the district councils). This means that we will see some very fierce politicking surrounding these local votes, ahead of a loya jirga.

(7) It is not the first time that an election is delayed. In fact, last year’s presidential and provincial council election has so far been to only election under the new constitution that was held on time, mainly to allow for a second round.

Tags:

Parliament national unity government Loya Jirga

Authors:

Martine van Bijlert

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