Afghanistan Analysts Network – English

Political Landscape

The Butter on the Bread: The Provincial Councils’ fight for extended authority

Thomas Ruttig 8 min

For more than two weeks, now, the campaign for the provincial council (PC) election has been running. It commenced on 4 March, and the presidential election that ends the era of President Hamed Karzai in Afghanistan’s highest office overshadows it. PC candidates and voters face one difficulty: the councils lack clearly defined authorities, which somewhat diminishes interest in these polls. An amendment of the law, initiated by PCs themselves, that would have increased councils’ authority, backfired. It became mired in technicalities, then the lower house of parliament clipped the so far already vague authority of the councils even further; the law still has to pass the upper house. As a result, say AAN senior analyst Thomas Ruttig and researcher Ehsan Qaane, the PCs, a crucial constitutional subnational counter-balance to Afghanistan’s centralised institutional set-up, still lack teeth. 

Compared to the presidential polls, the second set of elections on 5 April 2014 – those for the 34 Provincial Councils (PC), the legislative bodies on the level of the largest administrative units of the country – is getting less coverage. Three main factors are causing this attention gap: the diversity within the polls due to the sheer number of candidates, many of whom are only known in their communities; access problems in many provinces (including difficulties to establish a permanent media presence); and the lack of real powers these bodies have been equipped with by law. In the BBC-sponsored Open Jirga programme on the state-broadcaster RTA, the audience was rather hostile to what some participants called a “pointless” body.

Across the country, 2,704 candidates, 308 of them women, are running for 458 seats. In October last year, the Independent Election Commission disqualified 352 other contenders, among them 15 women, under what our earlier analysis then described as “rather sketchy circumstances”. This is a noticeable drop in the overall number of candidates compared with the last PC election in 2009 (held parallel with the presidential election, as this year), by 20 per cent. In the previous election, 3,339 candidates registered for 420 provincial council seats(1), 342 of whom were women. (Finally, 3,324 candidates ran, 328 of them women, “as [some] female candidates withdrew for security and other reasons”. In contrast, the absolute number of women candidates dropped only slightly, by 6 per cent, from 2009 to this year, and the male-female ration has not changed significantly at all.

By mid-February 2014, 19 more candidates were taken off the lists, after complaints came in about wrong declarations in their registration documents about age, ID card details or citizenship. This was followed by some 60 more, as the IEC announced on 19 March 2014, due to lack of documents certifying that their level of education was what is required for being a candidate; earlier this month, the IEC started looking at related files in the Ministry of Education for some hundreds of contenders.

A long history, but not much power

Provincial councils have existed in the country since 1923 when reformer-king Amanullah (ruled 1919–29) passed a new basic law (called nezamname)(2) by a loya jirga. Article 39 of the nezamname speaks of “local councils of the provincial and district centres” [emphasis added] and defines them “as advisory bodies”.(3) This has not changed drastically since then.

Article 139 of the constitution stipulates that “the provincial council takes part in securing the developmental targets of the state and improving its affairs … gives advice on important issues falling within the domain of the province” and “performs its duties in cooperation with the provincial administration”. But the first law to govern the provincial councils’ role was passed on 20 August 2005, only one month before the first parliamentary and provincial elections – therefore still a legislative degree – left the councils’ authorities vague. It only stipulated that the councils work “at the provincial level with the purpose of establishing a system that guarantees the participation of the people and of civil society in local governance and that gives advice to the local governmental institutions” [all emphases added]. It did not clarify, for example, in what form the PCs would “take part” in provincial affairs (for example, whether they have the right to take part in sessions of provincial administration bodies) or how binding their “advice” would be.

At the same time, the PCs’ budgets remained limited and dependent on the provincial governors. PC members started complaining early on that the lack of adequate resources hampers their mobility and limits their opportunities to interact with the population, particularly in remoter areas.

The Law on Provincial Councils that was finally passed two years later, on 5 Hamal 1386 (25 March 2007), and that replaced the earlier decree added (in Art. 4) that the provincial councils have the authority “to observe the efficient use of the provincial financial sources” (it uses the term nezarat kardan, in Dari). But, again, the mechanisms for how this should be achieved were not defined. As a result, the PCs remain dependent on the willingness of the provincial governors to cooperate with them.

The embattled power of “monitoring”

The term nezarat became the bone of contention when provincial councils, with the support of the Independent Directorate for Local Governance (IDLG), wanted to remedy these shortcomings. The heads of all 34 provincial councils drafted a new law in a series of meetings that started three years ago. Their proposal contains three major points: to increase the authorities of the PCs by adding what they were to “observe”; to increase the independence of the PCs from the governors’ offices, by moving the budgetary responsibility for the PCs to the IDLG central office; and to clarify some technical procedures in the law. The letter the PC representatives sent to the Wolesi Jirga, and which AAN has seen (the draft law has not been made available), says that the PCs would “provide advice to the governor and other provincial institutions” and “observe the financial sources and activities of provincial institutions”.

The draft, however, was still not void of contradictions. The proposal to transfer budgetary authority for the councils to IDLG would strengthen an institutional paradox: although elected bodies, part of the legislative and meant to be part of the checks and balances for the executive organ, the PCs would move even further under the executive, of which the IDLG is a part; the PCs already report to the president. Both provisions – on “observation” and on the changed budget control – would cut down the influence of the provincial governors who also preside over the Provincial Development Councils.

Although technically the PC law does not have any effect on this year’s elections (they will be conducted according to the election law), it nevertheless determines how attractive it is to run for the PCs. Defining the role of the PCs more clearly is also particularly important as the government is preparing legislation that will transfer some budgetary power to the provincial level. So far, neither provincial governors, the provincial departments of the ministries nor other bodies on this level have any say in the allocation of money from the budget – one major feature of the country’s over-centralisation.

The Ministry of Justice (MoJ), however, which is responsible for drafting all legislation or approving legislation drafted by other authorised bodies, rejected the PC/IDLG proposals. The cabinet approved the MoJ version and sent it to the parliament’s lower house, the Wolesi Jirga, which discussed it three times in joint sessions of their 18 commissions. There, two camps emerged. One group of MPs wanted to re-enter the “observation” function, but another strong group was in favour of completely eliminating it, arguing it was against the constitution, but actually more driven by the fear that elevated authorities for the PCs might diminish their own.

Finally, the Wolesi Jirga asked the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC) about the observation powers for the PCs and the commission came up with the wise verdict that neither giving nor withholding such an authority was against the constitution. At the end of the day and despite the lobbying of the PCs and IDLG (a report in Dari), the lower house approved the draft on 11 January by a majority (only 24 MPs voted against), dropping the “observation” and sticking to the much softer “advisory” role prescribed in the constitution.

PC law still a cliff-hanger

The outcome of this lengthy exercise is a new text that has better legal language and that clarified some internal procedures of the PCs. Technically, although not in the spirit, it also fulfils one benchmark of the July 2013 Tokyo Mutual Accountability Framework (TMAF) that constitutes the basis for the continued flow of development aid to Afghanistan after 2014. (The TMAF requires that the Afghan government, among other points, establish a legal framework for sub-national governance.) For the provincial councils and their role as an instrument of political participation on the subnational level, in practice it backfired, as even their vague observation function is now under threat.

The last word has not yet been spoken, though. The draft of the PC law is in the parliament’s upper house now, which has just returned from its winter recess. Two thirds of the house is composed of PC members,(4) so it can be expected that these senators have a self-interest in boosting PCs’ powers. A controversy between both houses of parliament could further delay the passing of the law. If it ends positively for the PCs (and this is a big ‘if’), it will have an effect earliest in 2018, though, when the next PC elections are to take place.

Legal versus real powers

As Afghan laws are often honoured in the breech (or circumvention) rather than in strict observance, real power and influence vary greatly between different provincial councils. The most extreme example of extensive power of a provincial council comes from Kandahar, where the PC chairman, presidential brother Ahmad Wali Karzai (assassinated in July 2011), acted more as a super-governor of Afghanistan’s southwestern region, Loy (Greater) Kandahar, than chairman of an elected body with ill-defined authority. Compared to him, Kandahar’s changing provincial governors were of secondary importance at best.

In contrast, some powerful provincial governors have not appreciated the elected provincial body. The PCs usually are composed of different province-based interest groups, some of which almost necessarily are in opposition to the particular governors. One governor, of a province in western Afghanistan, told the author in 2006 that the PC was a “pain in the neck” and that he wanted to keep it “at arms’ length” as much as possible. In Herat, a contested race for the leadership of the local PC in 2009 led to a negative polarisation between the person ultimately elected and the governor, contributing to the latter’s eventual resignation (see AAN’s reporting here). On a more systemic level, these conflicts reflect the contradiction between the governors (who are appointed by the president) as part of the executive and the elected councils, which are the provincial-level legislative organ meant to provide checks and balances for the central government’s representative on this level.

In any case, seats on a provincial council give at least potential access to power structures and networks in the provinces and even in Kabul if played well. This should even increase if the PCs are given the desired power of observation. As one man told AAN, when mentioning that his wife was running for a PC seat this year: in case of success, nan-e ma ba roghan charb khahad bud (“my bread would be buttered”). But the stakes in the competition are rather high, as was shown by a recent armed clash in Parwan province, north of Kabul. There, supporters of two powerful provincial council candidates engaged in a fire-fight in which four people sustained casualties, including one of the candidates (reported by Afghan Islamic Press, 6 March 2014, through BBC Monitoring).

Apart from the parliament’s fears of losing authority when the PCs assume some on the provincial level, there is a deeper conflict about the state structure in general, which is reflected in the hesitation to transfer some powers to the provincial level. This conflict plays out between supporters of the current centralised model, which also was fixed in the constitution, and proponents of a devolution of some powers from the centre to the provinces or even federalism. The latter are often suspected to actually favour ethnic separatism, which polarises the debate more than necessary and stands in the way of necessary improvements to popular participation as well as of bottom-up planning and resource allocation according to local needs that are often difficult to gauge from Kabul. The World Bank, in a 2007 report, commented that the prevalent “constitutional dispensation and political climate [preclude] any significant reform to the underlying intergovernmental structure in the short or medium term”. The debate about the PC law shows that this has not changed since, because the executive is not supportive. It will be interesting to see how the upper house of parliament, usually perceived to be much more pro-president than the lower house but which, at the same time, is composed of many provincial council members, will solve this dilemma.

 

(1) The rise of the number of PC seats has not been officially explained yet and AAN has so far not received an answer on its query from the IEC. The rise in numbers must have to do with the principle that provincial council seats are allocated to the provinces according to the size of their population. Apparently, the IEC is assuming that there was a rise in the population of various provinces, but in which exactly remains pending until information is shared.

(2) The current term for “constitution” is qanun-e asasi (Dari) and asasi qanun (Pashto).

(3) Quoted from The Constitutions of Afghanistan (1923–1996), Shah M Book Co, Kabul, not dated.

(4) According to the constitution, one third of the 102 members of the upper house (De Meshrano Jirga, or Senate) is elected from the members of 34 provincial councils and the second third from the district councils. The district councils, however, have not yet been elected, so that a transitional stipulation is valid that gives that role to the provincial councils, too. This provides the PC some over-proportionate role in the upper house, one factor that makes a PC membership attractive. The remaining 34 seats are filled by appointees of the president.

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provincial councils Elections

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