Afghanistan Analysts Network – English

Political Landscape

Passing the Electoral Law: Four Controversies Down, Seven More to Go

Martine van Bijlert 13 min

The Wolesi Jirga has started to tackle the Electoral Law and is now going through the remaining controversial articles. The discussions so far have included shouting matches and near-fights, providing a taste of what may still come, particularly as the session inches towards what held the Parliament hostage for weeks in 2008: the issue of kuchi representation – a controversy with overtly ethnic overtones. In the meantime, the on-going discussions and revelations around Parliamentary corruption continue to preoccupy MPs. But even if they don’t get side-tracked or caught up in further scuffles, walk-outs or boycotts, this may well be a fairly protracted process. Unless proceedings suddenly speed up, it will at the current rate take the Wolesi Jirga at least two more weeks to finalise the law.

The draft Electoral Law was sent to Parliament by the Cabinet in December 2012. The most controversial change in the government’s draft was the replacement of the Electoral Complaints Commission (ECC) by a Special Tribunal. The Legislative Committee of the Wolesi Jirga has since then worked on the law and made several amendments. The new draft was finalised in March 2012 after which it was discussed in the Parliamentary committees. It has now arrived in the plenary session for the finalisation of the amendments that the committees could not agree on; according to a list that is circulating there are eleven such amendments. So far the Wolesi Jirga has managed to vote on four of them, voting off the mixed electoral system, fixing the location of the count, maintaining the quarantining of suspicious ballot boxes and again removing the Special Tribunal from the draft law.

Discussions started on Monday 22 April 2013, but only after several unrelated and heated interventions focusing on the subject of Parliamentary corruption. The Wolesi Jirga continues to be in a considerable state of upheaval, after the recent – deflated – summoning of eleven Ministers and the allegations – both from within and outside the Parliament – that MPs are widely engaged in the extraction of bribes and favours, among others from the ministers they are threatening to vote off. This ongoing saga is likely to remain a considerable distraction, as illustrated on Monday when a heated exchange between Kunduz MP Abdul Wodud Paiman and Kabul MP Seyd Hussein Anwari briefly dragged the session into disarray.(1)

The electoral system (article 2); Afghanistan’s cyclical discussions 
The first article of the Electoral Law that the session discussed, dealt with the electoral system. Whereas earlier versions of the law had not specified this, the new draft stated that Afghanistan would have “a mixed electoral system, unless mentioned otherwise in the law” (the mixed system is relevant for the Parliamentary vote, but does not seem to apply to any of the other elections). The head of the Independent Electoral Commission (IEC) Fazl Ahmad, who was present, explained that this meant that one third of the assembly’s seats would be reserved for political party candidates – a move he strongly supported. In the brief discussion that followed, three MPs gave arguments in defence of a mixed system (arguing that it would strengthen political parties and prevent the wastage of votes) and three MPs argued against it (saying that because most political parties are ethnic in nature this would compound the country’s problems, that votes should be given to an individual and should be non-transferrable, and that giving special treatment to party members is a form of discrimination). After a long discussion a majority voted to drop the article.

The back-and-forth discussion on the electoral system has been part of the process ever since the practicalities of the elections were first discussed in 2003/2004. The first draft of the electoral law, drawn up then by international electoral advisers, suggested a proportional representation (PR) system with closed party lists. The suggestion was rebuffed by the Cabinet, on the grounds that it was too complicated and gave too much power to the (jihadi) parties. Since then every election has been preceded by a repeat of the same discussion, with international advisers and parts of the Afghan political class pushing for at least a partial PR party-list system, only to slump back into the flawed but by now familiar SNTV.(2) This round has been no different.

Counting, quarantining and announcing the final results (articles 3.10, 3.22 and 3.26)
After dropping the mixed electoral system the session moved to the controversies that had arisen around the law’s terminologies: the definitions of ‘counting centre’, ‘quarantining’ and ‘final results’.(3) But rather than limiting themselves to hashing out workable definitions, the session was quickly embroiled in issues of substance: Where should the count take place? Should there be quarantining at all? Do we still need a Special Tribunal?

The discussion on the definition of counting centre thus revolved around the question of where and when the votes should be counted. Over the years the count has migrated from the centre to the periphery: from centralised regional (2004) and provincial counting centres (2005), to immediate counting at the polling stations (2009 and 2010). But instead of going for the more matter-of-fact existing definition that a counting centre is ‘a place where, after polling, votes are counted’, the MPs decided to determine by law where the count should take place. Proponents of the count at the local level argued that the transfer of uncounted votes to central locations undermined transparency and left ballot boxes vulnerable to tampering, either during transit or once they were in the hands of powerful officials and strongmen. Opponents argued that the remoteness and sheer number of locations made the count difficult to monitor and pointed out that the counters would be same people who had also voted and that this opened up the process to manipulation. IEC head Manawi conceded that although in theory the immediate local count was ideal, in practice it had not worked that well: recounts during the last elections showed that there had been a high level of fraud during the process. This discussion also had its scuffle, when Badakhshan MP Nilofar Ibrahimi wanted to speak, but was not allowed (the leadership had decided that only a few designated MPs would speak on each subject, in order to shorten the discussions). Ibrahimi left the hall angry, taking with her a number of other (mainly female) MPs, one of whom threatened to throw a water bottle at the Wolesi Jirga’s administrative board. When the session finally voted on the issue, an overwhelming majority of the MPs voted for a count at the polling station level.

The issue of quarantining was included in the list of controversies, because the session needed to decide whether the relevant body dealing with this – other than the IEC – was the Special Tribunal (original government draft) or the Electoral Complaints Commission (ECC) (amended Wolesi Jirga draft). The discussion in the session, however, turned to whether there needed to be a quarantining process at all, now that the count was taking place at the polling station (quarantining being defined as “the temporary removal of suspicious ballot boxes from the counting process, until they are re-examined and decided upon by the [Independent Electoral] Commission or the Special Tribunal / Electoral Complaint Commission”). In the end the Wolesi Jirga voted to keep the article. The discussion reflected a rather narrow understanding of the counting process, focusing only on the physical handling of the ballot papers. In reality, in every election so far, the count has been an extremely protracted – and tense – process, involving the actual count of the ballots, the transfer of the count forms, the data entry and tallying process, the identification and quarantining of suspicious ballot boxes (based on signs of tampering, suspicious count results or reports of abuse), investigations and final decisions whether or not to include the suspicious votes. This has resulted in the quarantining and nullifying of literally millions of votes. It is during this process that the winners and losers are determined, so the attempts to manipulate, defraud and influence it are relentless and immense – at every stage.

The discussion then moved on to the question whether there should be a Special Electoral Tribunal or not. Opinions were divided. A few MPs argued that the government was right and that the Electoral Complaints Commission should be replaced by a Special Tribunal. A second group opposed it, arguing that because such a tribunal is not mentioned in the Constitution it would be illegal (they presented a letter from the Commission to Oversee the Implementation of the Constitution), and that it would moreover violate the recently adopted Law on the Mandate and Structure of the IEC, that had reinstated the ECC. Others argued that such a court would only make the process more complicated and drawn-out. A third group supported the idea of a Special Tribunal on the grounds that the current set-up does not provide for adjudication of disputes between the IEC and the ECC, suggesting that a special tribunal should play that role (as it did – rather controversially – after the 2010 parliamentary election when it was established by presidential decree). (4) When the issue was put to the vote, the session voted against the inclusion of the Special Tribunal in the text.

The session finally started discussing article 4.26 which gives the definition for the final results: “the information published by the IEC after scrutiny and approval by the Special Tribunal/Electoral Complaints Commission” – depending on which draft you are reading. The discussion mainly revolved around the questions whether it should be the IEC or the ECC who announces the final results. The article was not put to a vote and the session decided to continue the discussion on Saturday.

The remaining controversies that will be tabled in the coming days and weeks include:

Electoral constituencies (article 7)
This seemingly innocent article is what derailed the Wolesi Jirga’s discussions on the Electoral Law in 2008. The sticking point is the ten reserved Wolesi Jirga seats for kuchis (the exact wording in the article: “the constituency for the Wolesi Jirga is the province [and] for the kuchicandidates in the Wolesi Jirga, the whole country”). Non-Pashtun politicians argue that this gives kuchi candidates an unfair advantage and allows them to be elected with very small numbers of votes. Many of them see reserved seats as a poorly-concealed way to ensure a Pashtun majority in Parliament. The discussion thus has the potential to split the Wolesi Jirga along ethnic lines, as it did in 2008.

Candidate requirements (article 15)
The specific sub-article that has been flagged for discussion relates to the candidate requirements for mayors (respectively 5 years of experience in administration or at least 5 years of residence in the city of candidacy), but it is quite possible that the discussion in the session will encompass a much wider review of the requirements for all elected positions. Potentially contentious requirements that have been included in the latest draft of the law are:

– Presidential candidates: only Afghan citizenship, Muslim, born to Afghan parents, at least 40 years old, higher education, no foreign spouse, shall not have been president for two terms;
– Wolesi Jirga candidates: Afghan nationality (since at least 10 years), at least 25 year old, at least 12th grade education and/or experience of one term in the WJ;
– Provincial council candidates: Afghan nationality, at least 30 years old, at least 12th grade education;
– District and village council candidates: Afghan nationality, at least 25 years old, basic literacy;
– Mayor candidates: Afghan nationality, at least 25 years old, at least a Bachelor’s degree (lisans) for provincial capital positions and 12th grade education for other cities, lived at least 5 years in the city of candidacy;
– Municipal council candidates: Afghan nationality, at least 25 years old, at least a Bachelor’s degree, lived at least 5 years in the city of candidacy.

Discussions are likely to revolve around education requirements and questions of (single and dual) nationality, and could get quite heated.

Restrictions to candidacies (article 17)
Article 17 lists the official positions that a person has to resign from if he or she wants to be a candidate for an elected position. An unofficial translation suggests that the latest draft of the law, as prepared by the WJ legislative committee, has a much shorter list of positions than all previous iterations of the law – involving only senior executive, advisory, electoral and diplomatic positions. Earlier versions of the law also restricted senior judiciary and military officials, civil servants, regular electoral staff and instructors of higher education institutions. If this is indeed the case, proponents of the slimming down are likely to stress the impracticality of having large numbers of officials, judges, teachers and professors resign because they want to run in a local or national election, while opponents will argue that the excluded positions still provide candidates with the unfair advantages of state resources and influence.

Designated female seats in the provincial and district councils (articles 29 and 31)
Finally, the two articles discussing the proportion of designated female seats in the provincial and district councils have been listed. It is not fully clear what the lines of discussion will be. The MPs may merely focus on the fact that in some provinces it has proven difficult to fill these seats or to fairly determine the proportion of women (they may also cite the unusual example of over-representation in Nimruz), but there is also a small possibility that the whole idea of the one fourth reserved seats for women may be up for discussion.

At the current rate of two controversial (sub)articles per session, the Wolesi Jirga will need at least four more rounds of discussion, and it is quite likely that this coming week not much will happen. Saturday is sandwiched between the weekend and a national holiday (mujahedin day) so Parliament may not have a quorum. For Monday the Wolesi Jirga has summoned the Minister of Interior again. This time they want to question him on his complaints that the Parliament has been wasting his time: he claims that since December 2012 he has been summoned to Parliament 46 times – 32 times by the Wolesi Jirga and 14 times by the Meshrano Jirga – and has received 15,200 requests from MPs, an average of 126 per day, asking for favours ranging from the provision of taxi licenses and the approval of bodyguards, to the appointment of high-level police chiefs. (5)

So all in all, it could easily take the Parliament at least another two weeks to pass the Electoral Law – assuming that they do not hit any major controversies (if they do, it could easily take much longer). The Palace in the meantime seems to have made the appointment of new IEC commissioners conditional on the passing of not only the IEC Structure law, which is currently on the President’s desk waiting for his signature, but also the general Electoral Law. The delayed appointment of the new IEC commissioners, (6) and ambiguity over the status of the current ones, is likely to further slowdown preparations for the elections.

(1) Paiman announced in an earlier session that he had been given a list with the names of 80 MPs who had accepted bribes, but he backtracked on Monday and apologised, stating that it was difficult to prove the accuracy of the list and that it may have been a conspiracy. (This may or may not have been inspired by the fact that his name also appeared on the list). Anwari intervened and insisted that the Lower House drop all other issues from the agenda until the 80 names were revealed and fully investigated, after which the session briefly descended into a shouting match. Angry MPs moved towards the front of the hall with Paiman, bull-like, attempting to charge towards Anwari, but there was apparently no appetite to really derail the process, yet, and the session turned to the matter of the Electoral Law.

(2) Afghanistan’s current electoral system is a rare form (multi-seat constituency) of the, in itself rare, Single Non-Transferrable Vote (SNTV). SNTV is widely described, by political analysts and electoral experts, as a strong contributing factor to many of Afghanistan’s problems in terms of its messy elections and fragmented political process. The system, however, did have its backers at the time, including among international advisers and diplomats who feared that a PR system would mainly benefit the entrenched and armed parties.

For a bit of history: The original draft law was put forward by UNAMA in February 2004, after the adoption of the Constitution and as the country was readying itself for the elections that were to take place later that year (initially all elections – presidential, Parliamentary, provincial council and district council – were ambitiously thought to take place at once). The draft envisaged 215 provincial and 34 national seats, to be contested by political parties who would put forward candidates on closed (but not secret) lists. The Afghan government rejected the system and, among considerable confusion over the exact nature and implications of the various alternative systems, finally opted for SNTV in May 2004.
In early 2005, in the run-up to the first legislative elections, there was an unsuccessful push to change the electoral system, inspired mainly by international electoral advisers and diplomats who stressed both the problems of SNTV and the need to strengthen the country’s political parties. The 2005 parliamentary and provincial council elections vividly illustrated the weaknesses of the system: with votes being divided between so many candidates, the outcome became almost random, margins were almost negligible and the majority of the votes were effectively wasted.
In 2007 the IEC, with input from international advisers, drafted a new electoral law based on a mixed electoral system – two-thirds SNTV and one-third party list – which was swiftly dropped after further discussions with the government. When the draft was finally discussed in Parliament in April 2008, the session agreed to stick to SNTV, but eventually failed to pass the law in time for the 2009 and 2010 elections among heated discussions on the proportion of designated kuchi seats for the Wolesi Jirga.

(3) Article 3 of the March 2013 draft; in the government’s version of the draft this is article 4, which explains the Tolo News headline ‘Afghan Parliament Approves 2 paragraphs of 4th article of Election Law’.

(4) The absence of a body that can adjudicate disputes between the IEC and the ECC has indeed been an issue in all elections – except the first Presidential elections in 2004, but that was because there was no ECC (only a hastily convened independent panel that was established to investigate the failure of the indelible ink – another recurring feature of Afghanistan’s elections – and that preceded the establishment of the ECC). The absence of legitimacy of the ad hoc Special Tribunal after the 2010 elections meant that this body also could not play that role.

(5) This issue has preoccupied the MPs. On Wednesday most of the first hour was taken up by interventions dealing with the MoI complaint (as well as local security concerns). Badghis MPs Qazi Abdur Rahim said that the MoI disclosure was good, but that the Minister should not treat all petitions as illegal. According to him it was the MPs duty to provide the MoI with reports from their provinces, as well as with suggestions to act: if a police officer is a smuggler, MPs have a responsibility to get him dismissed. Balkh MP Abul Rahman Rahmani disclosed a list of MP bodyguards that had been authorised and are being paid by the MoI, claiming that the MoI uses this to weaken Parliament’s position. The MPs with the most body guards were: Sayyaf (39), Mullah Tarrakheil, whose body guards have been involved in brawls in the past (30), Haji Almas (20), Ezzat Atefi, also known as Mullah Ezzat (23), Seyd Hussain Anwari and Daud Kalakani (both 10).

(6) The new appointment process for the IEC and ECC, as adopted in the new draft of the IEC Structure Law, is quite complicated and may not survive, given that it severely limits the President’s influence on the composition. In this procedure, relevant sectors of society – academic councils and civil society for the IEC and judicial and legislative bodies for the ECC – introduce eligible candidates to a selection committee (27 for the IEC and 15 for the ECC). The selection committee narrows down the selection to respectively 14 and 8 candidates and passes the list on to the President, who then appoints the 9 members of the IEC or 3 members of the ECC from among them. It is process that will be fraught with low-level politicking. The president moreover loses his ability to pick the IEC leadership, as they will be elected from among the committee by the committee members.

Another change in the law is that the IEC and ECC members can now have only the Afghan nationality. The permissibility of dual nationality – or not – is brought up in almost all discussions on selection criteria for senior positions in Afghanistan. In partially reflects the widespread view that people with more than one nationality have split loyalties or may not be fully committed to the well-being of their country, given that they can leave if it all goes wrong. But it can also be a more intentional attempt to exclude a certain social and political class from appointments or candidacies. For a recent example of such discussions, see the recent back-on-forth on whether diplomats and MFA staff can have other nationalities and/or foreign spouses. The Parliament initially passed a law which said they couldn’t, but the articles were annulled by the Supreme Court that deemed them against the Constitution.


Democratization Elections Electoral Law Government Wolesi Jirga


Martine van Bijlert

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