The cabinet of ministers is finally sending its draft electoral law to parliament, and a preview of its content is already proving a bombshell. According to the draft, the Electoral Complaints Commission (ECC) is to be replaced by a special court appointed by the Supreme Court. Waiting to see what the future of the ECC will be, after the parliament scrutiny of the law, AAN’s Fabrizio Foschini reports on the negative impact the cabinet’s plan is likely to have on the political consultations which were on track between the various political parties, government and opposition.
In a sudden turn of events, the Electoral Complaints Commission (ECC), the independent body created to adjudicate upon charges of fraud during the elections, has been eliminated from the draft electoral law – and thus, insofar as the law is not changed, from the electoral process (read here). On Tuesday, 4 December, the head of the Independent Electoral Commission (IEC), Fazl Ahmad Manawi, announced that the ECC was no longer present in the draft of the electoral law that will be sent back – in the next few days – by the cabinet to the parliament. In place of the ECC, a special court to be appointed by the Supreme Court will take on the task of receiving, investigating and deciding alleged irregularities and fraud.
A debate on the form and composition of the ECC had been going on for several months. First, it was reported that its name would change, and that it would be put under the control of the IEC (with more options, ranging from its subordination to the judiciary to its establishment as a permanent institution with ample scope for investigation, already hinted at – see our previous blog). The lower house of parliament, the Wolesi Jirga, had confirmed the previous ECC structure when passing its amended draft of the Law on the Structure and Mandate of the Independent Electoral Commission, on 24 September 2012. After the draft reached the upper house, the Meshrano Jirga, the dispute seemed to revolve mainly around the presence of two foreign commissioners, among the five. Indeed, the Senate took a strong, majority position against the presence of foreigners in the ECC – with the Chairman of the Legislative Affairs commission of the Meshrano Jirga, Abdul Qayum Nuristani, even declaring that the presence of foreigners in the ECC would go against the sovereignty and the national interests of Afghanistan (1); they were excluded from the Senate’s draft of the law.
Reactions to the cabinet’s decision have been fast, and frequently furious. Almost immediately, the spokespersons of two major opposition parties, the National Front and the National Coalition, rejected the cabinet’s removal of the ECC in strong terms. For the former, Sardar Mohammad Rahimi told Channel One that, ‘the government want to legally pave the way for interference in the election.’ For his part, the Coalition spokesperson, Sayed Hussein Sancharaki, posted on his Facebook page a long article, in which he condemns the decision of the president and the cabinet which, he says, ‘goes utterly against the political parties and coalitions, the organizations of the civil society and the house of the representatives of the country.’(2) Other political formations like Rights and Justice or broader coalitions like the recently formed, Council for Coordination and Cooperation (for reporting, see an AAN previous blog) had already spoken up in support of the ECC, including advocating the inclusion of foreign commissioners.
The uneasiness of President Karzai with the presence of foreigners on the ECC was nothing new. He tried to get rid of them before, and in a way this could have succeeded in seeming reasonable in the eyes of some Afghans. By contrast, advocating a foreign presence as a guarantee of transparency can sound like an unnecessary presumption of “moral superiority” on the part of foreigners. Afghans could have argued with some reasons that the foreign commissioners did not do much to prevent fraud in the 2010 parliamentary election and among their ECC colleagues they did look quite passive, if not absent. Removing them certainly fits well with the recurrent nationalist attitude taken by the government in the context of elections, with President Karzai even suggesting at some point that excluding foreign funding completely from the elections would be the best way to prevent interference – unfortunately, this would also have prevented the elections taking place, at all (3).
The wholesale removal of the ECC becomes now an even more dramatic bone of contention (4). The move draws criticism in two ways: it ignores or counters the Wolesi Jirga’s early decision of upholding the ECC’s role (and actually also the Meshrano Jirga’s decision to keep the ECC – although bereft of foreigners); it replaces an independent body with a judicial body which is much more likely to be influenced by the government.
In fact, it is not only the arbitrary erasure of the ECC which has proved controversial. The alternative apparently suggested by the cabinet, that is the Supreme Court appointing an ad hoc body to preside over complaints, is likely to create even more resistance, at least inside the Wolesi Jirga. There, it brings to the mind of many MPs bad memories of the special tribunal that was created in the months following the 2010 parliamentary elections under pressure of different state organs and, arguably, with the support of the Presidential Office, to supersede the ECC and effect changes in the composition of the elected Wolesi Jirga – changes which were eventually effected only after months of a tense stalemate, in the summer of 2011. Indeed, Kabul representative, Sayed Hussein Anwari, talking to Channel One, immediately compared the Cabinet’s plan to the creation of the Special Court.
Adding to the controversy of this move is the abruptness with which it has taken place, at the height of a series of explorative talks between various political parties and also, as of late, the government. The most recent meeting, for example, which took place on 28 November, where many among the leaders of the opposition who accepted an invitation to the Palace to discuss the elections with Karzai, ended in a somewhat strained way – as noted in a blog by the former Afghan former ambassador to Canada and France, Omar Samad, for the United States Insitute of Peace (USIP). The declaration issued by the presidential office the following day did sound as if it was aimed at getting the opposition on board for a public show of optimism and unity, while several leaders of the opposition reported the lack of flexibility of the government towards their proposals. Those parts of the opposition which participated and were indirctly critcised by the National Front (which, according to Samad had ‘boycotted’ the meeting) defended their attendance by saying they had gone for the sake of giving an ultimatum to Karzai: to accept a fair and smooth transfer of power (read here).
However, the mere fact that this meeting took place hinted that there may have been a will, in both the palace and the opposition, to avoid the same level of confrontation that took place in 2009, out of fear that it could lead to a serious crisis at a very critical moment for the country. At the meeting, the opposition stressed the need for Karzai to accept a “peaceful” transfer of power and that they were not looking for any “revenge”, that is, they guaranted him to “withdraw” in good order. One of the government’s major concerns seems to be defending the perception of a legitimate electoral process; Karzai sounded concerned to have a good end to his presidency and to have been entertaining the hope of being able to remain, together with his close team, a relevant political player.
So, was there a serious possibility for an inclusive, compromise solution between the various factions inside the government and the opposition? The Palace wants to make the post-elections complaints period short and painless, maybe understandably after past, traumatic experiences. Still, to achieve that, it seems to rely more on political manoeuvring than in respecting the technicalities of the vote and the tools to achieve both strategies are different. Getting rid of the ECC will not cancel the complaints if the voting process is still flawed. Moreover, the move will cause reaching out and engaging in constructive debates between the government and the opposition much more difficult, at least in the short term. The tones used by the opposition are already turning from resolute, but conciliatory, into battle cries and accusations of sabotaging the elections.
Foreign countries are likewise interested in a “successful” 2014 election that facilitates a smooth transition and withdrawal, but now they may well be annoyed at the rather rough move by the Palace, which went again the encouraging signs of discussions within the main political forces and will almost certainly provoke a heated confrontation. Then, the international players could be dragged in, and then have to choose if to stay aloof or to risk rocking the boat of their relations with the government further by intervening.
But, more importantly in the short-term, the ECC issue will probably become a tool capable of splitting the two houses of the national assembly. The two houses have just formed a joint commission to sort out the difference in the respective drafts of the Law on the Structure and Mandate of the Independent Electoral Commission, namely the presence of foreigners in the ECC commissioners board. The Meshrano Jirga, which took a strong stance against foreigners in the ECC, when the draft law was presented to it, can now be expected to follow the “natural” course of this position into supporting a more “national” body – that is, one internal to the judiciary (5) – especially if the presence of the ECC comes to be seen as a prerequisite for elections asked for by the foreigners. However, different positions inside the Senate could also develop. The Wolesi Jirga, which has also the option of trying to pass the law even against the Meshrano Jirga by getting a two-thirds majority, may also experience some degree of internal divisions.
All of this could mean that some extra time will be needed for the two houses to come to terms or to go to a vote, and all this could result in another the sort of institutional deadlock as happened after the previous parliamentary elections. Only, this time, it would be before the vote took place. Taking into consideration Article 109 of the Constitution, which excludes the possibility of amendments to the electoral law during the last year of the legislature prior to the elections and the approaching winter recess of the parliament, time is short for the national assembly to try and revive the ECC. In the meantime, other problematic aspects of the current electoral process risk being neglected or put aside with everybody focusing on one glaring, highly politicised issue.
(1) Afghanistan Parliamentary Assistance Program Legislative Newsletter, 23 November 2012 (available here).
(2) The same commentary featured Jandad Spinghar of the Free and Fair Elections Foundation Afghanistan (FEFA) – a major supporter of electoral reform, stating that ‘every type of reform of the mechanism of the Electoral Complaints Commission must happen according to law, the law that has been approved by of the representatives of the National Assembly.”
(3) More pragmatically, in a recent political consultation about the elections on 28 November, Karzai told opposition leaders that he was also willing to replace old voter cards with electronic cards, provided the foreigners agreed to meet the costs.
(4) Karzai had already previously acted arbitrarily towards the ECC, with a presidential decree before the 2010 parliamentary elections, when he claimed for himself the right to appoint its members (see our previous blog).
(5) Abdul Rassul Sayyaf’s unanimity with the government on the issue and his strong standing both within the Meshrano Jirga, where the speaker is a member of his Dawat-e Islami party, and the Supreme Court may also play in this direction.
This article was last updated on 9 Mar 2020