Seven months after the Wolesi Jirga vote, and three months after the inauguration of Parliament, MPs are still not sure who will finally be declared the winners and losers of the election. Rumours surrounding the investigations by the Special Court have been wildly contradictory and have kept them on edge. It is a perfect example of Afghan politics: pressure, ambiguity, negotiations, posturing, confusion and suspicions of double-dealing. In the tug-of-war between the executive and the legislative, the President for the moment seems to be coming out on top – again.
The Wolesi Jirga election, which took place on 18 September 2010, was problematic and flawed, as could be expected. There were irregularities in all stages of the process, as well as a storm of complaints by candidates claiming – some plausibly, others less so – to have been deprived of their victory. This was not a new phenomenon; it has been part of each electoral process since 2004 and has grown more pronounced each time.
After the first Presidential election in 2004 an ad hoc international panel was established to investigate allegations of fraud and to ward off a boycott by the other candidates (in particular after the only safeguard against multiple voting, the indelible ink, proved unreliable). In 2005 the newly established Electoral Complaints Commission (ECC) struggled to deal with the mass of complaints they received and the limited mandate they had given themselves. In 2009 the more robust stance by the ECC pitted them into direct confrontation with the Independent Electoral Commission (IEC), which was only ‘solved’ through an improvised audit and heavy international pressure.
In 2010 the internationals decided to keep their distance and not get entangled in a messy process again. This suited President Karzai well, as the 2009 elections had left him angrily humiliated and deeply suspicious of what the international’s real intentions had been. The IEC and ECC agreed, beforehand, to have a more cooperative and united working relationship. And the candidates had learned that if you wanted to be sure of victory you needed to either influence the count or be able to survive the quarantining and invalidation of a large number of votes – preferably both. The process looked set to be messy again, with candidate complaints that would shake its architecture but – all parties hoped – fizzle out after a while, as had been the case in previous elections. What complicated matters, however, was that this time the President sided with the complainers.
So far every single Afghan election (not counting the ones before the Saur revolution) has seen the addition of a new body or procedure to deal with the messiness of an uncontrollable and intransparent vote: the ad hocelectoral panel in 2004, the ECC in 2005 (which became a permanent fixture), the audit in 2009 and the Special Court in 2010. They were all designed to address the massive attempts at manipulation and to ensure that all parties had equal chances of winning. But as they themselves become competed over, again new remedies are needed, which will in turn be fought over and manipulated.
The establishment of the Special Court, in this case, is a direct consequence of the failure of the IEC to be seen to be impartial, and the failure of the ECC to provide an effective check on this (and, of course, the fact that the partiality was seen as marginalizing the executive). The main problem is that the remedy will be worse than what it initially set out to solve.
A report released last week by FEFA, Afghanistan’s main domestic electoral observation organization (https://www.fefa.org.af/index.php), describes the workings of the Special Court. FEFA found a “process characterized by disorganization and lack of transparency. Procedures for the recount were not established beforehand in any of the provinces, and those involved in recount were not trained. In most provinces it was observed that representatives of the organs forming the provincial recount staff constantly changed.” This corresponds with the anecdotal information that AAN and others have gathered over the last few months.
In “some provinces”, according to FEFA, serious discrepancies were found between the number of votes in the ballot boxes and the tallies on the results sheet. Such findings were confirmed by complaining candidates, many of whom featured in news programs and talk shows, claiming the recovery of thousands of missing votes. FEFA, unsurprisingly, found that not all discrepancies were in favour of winning candidates and that some of the manipulations had favoured complaining candidates as well. Discrepancies that, if corrected, would have favoured losing candidates who had not complained (and who did not have representatives present at the recount), were generally not tallied and recorded. And most seriously “in most provinces … a final, official copy of the tally of votes from a specific ballot box was not provided to the representatives of candidates and others involved in the recount.” *
This means that although much of the work of the Special Court was done in the presence of observers, there is no basis whatsoever for future consensus on either its findings or the consequences of its findings. Whatever the outcome of the Special Court investigations will be, it will be contested.
On the other hand, there seems to be little illusion that the Special Court recount was meant as a procedurally sound mechanism, or that it aimed to determine the real outcome of the election. Instead the recount has a whole host of possible functions – partly overlapping and partly contradictory – and is in essence seen as an evolving instrument in the hand of the executive. At the same time, nobody really controls where this is going, just as nobody could control what happened on the ground once the recount started (but some have more influence than others).
So where do we stand at the moment? According to FEFA the recount has been finalised in 32 provinces and it is ongoing in Kabul (there was no recount in Panjshir; no complaining candidates there). This means that we are approaching some kind of conclusion (although it will be protracted, delayed, and full of twists and turns, seeming resolutions and sudden recurrences).
It is not clear what the conclusion will look like. There has been much confusion and controversy over the mandate of the Special Court. Some argued that its establishment was illegal; others maintained that as a judicial body it could only focus on criminal offenses and is not allowed to meddle with the outcome of the election. The latter also seems to have been the outcome of a meeting at the palace (although one can never be really sure) on 30 March 2011. Here the President, the head of the Supreme Court, a delegation from the Wolesi Jirga, and the Head of the Special Court reportedly decided on a clarification of the remit of the Special Court, determining among others that the use of the word “special” did not mean it was a one-off or isolated court and that any finding or ruling would be part of the regular judicial and appeal processes.
The clarification (and – more importantly – probably some underlying deal or ongoing negotiation) has appeased sections of both sides, thus fracturing both the opposition against the Special Court and the pressure applied by the complaining candidates.
The Wolesi Jirga, for instance, summoned and threatened to impeach the Attorney-General, but found itself backing down when he refused to appear (with rumours of MPs removing their signatures from the original interpellation letter). Attendance has been patchy and discussions unfocused, and rumours around alleged lists of those who are to be removed have resurfaced. Frustrated MPs accuse the parliamentary leadership of having struck a deal and accuse their colleagues of trying to make the most of their tenure before the summer break, seeking to enroll in trips abroad, not knowing how long they will remain.
In the meantime Karzai has introduced to the Wolesi Jirga the names of the four (since long) acting Ministers for a vote of confidence (see alsohttps://www.aan-afghanistan.org/index.asp?id=1612).The first hurdle, the fact that the WJ internal rules of procedure do not allow the re-introduction of previously voted-off candidates, has been taken, with the session agreeing to take their candidacy in consideration (those in favour arguing that it was a different Parliament that had voted them off, and those opposed walking out in anger). The Parliament is now waiting for the full list to be introduced, which it will take as an indication that the executive is treating them as the legitimate legislative body, as well as the revised budget, which it voted off late last month for being “unbalanced”.
The Cabinet and the budget are however not the only, and certainly not the most important, issues the President is seeking parliamentary cooperation on. More important are Karzai’s recently floated and controversial idea of a national Loya Jirga to discuss the nature of the foreign presence, the ongoing reintegration and reconciliation processes, and the recent developments on the joint Pak-Afghan peace commission (which has been surrounded by rumours and concerns over far-reaching Pakistani demands).
For the moment the trends seem to be moving toward a relatively cooperative and pliant Parliament, either by design or as a result of being preoccupied and fractured. It is likely that the Special Court findings would not be so disruptive as to alienate the full Wolesi Jirga, but disruptive enough to keep the hopes of the main complaining candidates up and the sitting MPs on their toes. The suggestion that whatever the findings of the Special Court are, they would still need to go through the three stages of the judicial appeal process seems perfectly suited for this purpose.
* FEFA did not directly observe the recount process (which they believe does not have a legal basis), but conducted semi-structured interviews with people who observed or were otherwise involved in the process. The English and Dari reports can be found here and here. Be aware that the English translation is at times confusing and inaccurate, including in some of the places that are quoted above (which were quoted from the Dari version).
This article was last updated on 9 Mar 2020