This report looks at the legal framework, status and trajectory of four important state institutions, both elected and appointed: the Supreme Court, Senate, provincial councils and the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC). According to the Afghan constitution, these institutions should play significant roles in providing checks and balances, accountability, representation and rule of law, but AAN’s Ali Yawar Adili, Rohullah Sorush and Sayed Asadullah Sadat conclude that there has been a complete disregard, mainly on the part of both post-Taleban presidents, for the constitutional limits set on the terms of these institutions and their members. This, and other problems, have left them void of even the minimal independence needed to exercise their constitutional mandate to provide accountability and introduced a stagnation into the overall political system. Three ICOIC members, Abdullah Shafayi, Said Abu Bakr Mutaqi, Muhmmad Aref Hafez in a meeting on 4 October 2021. Source: ICOIC Facebook page.
- The Supreme Court, whose members are appointed by the president and confirmed by the Wolesi Jirga, currently has only six of the nine members specified by the constitution. This gives it a quorum, but that disappears if even one member is sick, travelling or otherwise absent. Except for the first four years of its existence, the Supreme Court, the final legal authority in the land, has never been composed according to the constitution.
- The Independent Commission for Overseeing the Implementation of the Constitution has only four out of the seven members specified by its law, making it inquorate and unable to perform its constitutional mandate. All of the members are also beyond their terms. In its eleven years of existence, it has never been fully staffed except for two years, from December 2015 to September 2017.
- 117 provincial councillors – more than a quarter – have resigned or have died and not been replaced, the majority because of confusion caused by the president ahead of the last presidential election. Provincial councillors have not been subject to elections since 2014, which means the 340 still serving have been in post extra-constitutionally since 2018 when elections should have taken place.
- The Senate currently has only 68 out of the 102 members specified by the constitution. The Senate should be a mix of one-third members appointed by the president and two-thirds members of provincial and district councils elected by their fellow councillors. All senators drawn from provincial councils have been serving extra-constitutionally since 2018. There have never been district elections and the solution of having extra provincial councillors to fill the gap has lapsed since 2014.
- The disarray these institutions find themselves in stems from a number of factors. Most importantly, the presidents’ disregard for constitutional term limits has affected all these institutions. Especially the executive, but also the legislative branches of government have subjected them to manipulation. The mandate of these institutions, particularly of the Supreme Court and the ICOIC, has been problematic from the start due to ambiguities and gaps in the constitution, leaving them even more vulnerable to political interests and hampering their ability to carry out their duties. Provincial council elections have also been affected by insecurity and this was a factor also in not holding district council elections at all; inevitably, this means the Senate is also incomplete and operating extra-constitutionally.
In this report, we focus on these four bodies, in turn. We could have drawn the net even wider, surveying the ministries and various state bodies considered by the constitution to be equivalent to ministries, such as the central bank (De Afghanistan Bank) and Attorney General’s Office where many of the same problems can be found. This is touched on in the conclusion where we argue that the malaise affecting many state institutions points to a wider stagnation within the Afghan body politic.
- Legal framework
According to article 116 of the constitution, the Supreme Court is “the highest judicial organ, heading the judicial power” of the Islamic Republic of Afghanistan. The judiciary, the article stipulates, “shall be comprised of the Supreme Court, Courts of Appeal and Primary Courts.” Article 117 specifies that the Supreme Court should have nine members, with one as Chief Justice, appointed by the president and endorsed by the Wolesi Jirga. It also sets forth that the first round of appointments should be made as follows:
- Three members for four years
- Three members for seven years
- Three members for ten years
Article 117 bars members from serving a second term. Members of the Supreme Court cannot be dismissed unless, under article 127, they are “accused of a crime related to job performance or committing a crime.” In this instance, a third of Wolesi Jirga members must demand a trial and two-thirds must approve this demand. At this point, the accused member will be dismissed from his or her position and the issue referred to a special court.
Article 118 of the constitution specifies that members of the Supreme Court should be: at least 40 years old; citizens of Afghanistan; have a higher education in legal studies or Islamic jurisprudence, as well as expertise in and adequate experience of the judicial system of Afghanistan; be of good character and reputation; should not have been convicted by a court of crimes, crimes against humanity, or the deprivation of civil rights and; should not be a member of any political party during their term.
Article 121 of the constitution stipulates that the Supreme Court has the authority to review the laws, legislative decrees, international treaties and international covenants to ensure compliance with the constitution and their interpretation in accordance with the law. It says this review will be done at the request of the government or courts. This is in addition to the authority which article 120 gives to the judiciary as a whole, which is to consider all cases “filed by real or incorporeal persons, including the state, as plaintiffs or defendants, before the court in accordance with the provisions of the law.” The Supreme Court, in practice, has also used article 121 to assert its authority to interpret the constitution, even though this article does not grant this authority explicitly. This has been a constant source of conflict between the Supreme Court and the Independent Commission for Overseeing the Implementation of the constitution or ICOIC (more on this below).
- The current make-up of the Supreme Court
The Supreme Court currently has only six out of its nine members, who are (see their biographies on the Supreme Court’s website here and here):
- Sayed Yusuf Halim (appointed as the chief justice by presidential decree number 48, dated 27 January 2015)
- Abdul Malek Kamawi (appointed in June 2012)
- Barat Ali Matin (appointed in October 2013)
- Abdul Qader Adalatkhwah (appointed in January 2014)
- Abdul Hasib Ahadi (appointed in December 2014)
- Muhammad Zaman Sangari (appointed in June 2016)
President Ashraf Ghani did nominate judges for the three remaining vacancies, but they have not been confirmed by the Wolesi Jirga. On 29 July 2018, he nominated Anisa Rasuli and Shakur Mahjur to the Supreme Court. Rasuli had previously been nominated as the first female member of the Supreme Court in 2015, but her nomination was rejected by the Wolesi Jirga on 8 July of that year (media report here) after “conservative MPs” had campaigned against her and a large number of (21) female MPs were absent on the day of the vote (media report here). When she was nominated again in 2018, Ghani’s decree cited article 6, section 12 of the constitution, as well as a provision in Hanafi jurisprudence which allows women to judge “in cases where her witness/testimony is acceptable and [in cases] other than the hudud [divinely mandated and fixed punishments] and qesas [retributive justice],” as the basis for her nomination (see the decrees appointing Rasuli here and Mahjur here). Later, Ghani nominated Dr Abdullah Atayi as a third candidate, on 5 January 2019 (see the decree). Almost two years later, on 27 December 2020, the Kabul-based daily Etilaat-e Roz cited sources within the Supreme Court saying that for “unknown reasons” the three candidates had never been sent to the parliament for confirmation.
When Rasuli and Mahjur were nominated in 2018, the parliament was in its last year; its mandate had actually ended in 2015, but elections were postponed until October 2018. With everyone busy with the forthcoming elections, it has been argued, it would not have been practical for the parliament to confirm these nominees. Yet, by the time Atayi was nominated in early 2019, elections had been held, although the results had yet to be announced. This might have been a reason for not introducing the three nominees to the parliament for confirmation at that time. However, the current parliament was inaugurated in late April 2019 and by July of the same year had elected its speaker and the rest of its administrative board (see AAN reporting here). It is difficult to understand why the three nominees (or new ones) have still been not introduced to the Wolesi Jirga, almost two years on.
On 3 March 2021, Supreme Court spokesperson Enayatullah Hafez confirmed to AAN that the three individuals had been nominated and that it was up to the president’s office to explain why they had not yet been introduced to the Wolesi Jirga for confirmation. Hafez said the nominees had not assumed their roles because the law does not allow acting members of the Supreme Court. However, as we shall see below, acting members have served in the Supreme Court. Hafez also confirmed that the quorum for the Supreme Court’s High Council is six members, which means that, currently, if any member is travelling, sick or otherwise absent, there will be no quorum.
President Hamed Karzai nominated the first post-Taleban Supreme Court in March 2006 and sent his appointees to the newly-constituted Wolesi Jirga for confirmation (following parliamentary elections held in September 2005 and the inauguration of the parliament on 19 December 2005). They were: Fazl Hadi Shinwari as head of the Supreme Court (also known as the Chief Justice), Muhammad Omar Mohmand, Mawlawi Muhammad Qasem, Muhammad Qasem Hashemzai, Muhammad Hussain Rustayi, Shah Ali Asghar Shahristani, Bahauddin Baha, Abdul Rashid Rashed and Muhammad Alim Nasimi.
After two months and two rounds of voting, lawmakers confirmed only two of the nominees (Nasimi and Qasem), on 24 May 2006. On the same day, it rejected Shahristani and Mohmand by a formal vote, and three nominees, Hashemzai, Rashed and Baha, by a ‘voice vote’ of ayes and nays because they were dual nationals (media report here and in United States embassy cables published by Wikileaks here and here). On 27 May 2006, the Wolesi Jirga also rejected Shinwari as chief justice and Rustayi as Supreme Court member.
On 6 July, Karzai reintroduced the three nominees (Hashemzai, Baha and Rashed) who had been rejected by parliament due to dual citizenship and introduced four new nominees: Abdul Salam Azemi as chief justice and Zamin Ali Behsudi, Ghulam Nabi Nawayi and Omar Babrakzai as members. On 1 August, parliament again discussed the three dual nationals and this time, decided the nominees should take action within two months to cancel their second citizenship. On the same day, the parliament confirmed Azemi and five other members (Baha, Rashed, Behsudi, Nawayi and Babrakzai). The confirmation of Hashemzai was controversial, as he received what is called a ‘plurality’, a majority of the votes excluding any abstentions, rather than a majority of more than 50 per cent, including abstentions. While some MPs argued this was sufficient for confirmation, per article 106 of the constitution, others said the confirmation needed a majority vote. The Wolesi Jirga deferred a decision on his fate to the next session. Hashemzai was never appointed to the Supreme Court and, on 9 March 2021, he told AAN he regretted his decision not to appeal to the Supreme Court. A ninth member, Pohand (Professor) Abdul Aziz Aziz was appointed later. According to his asset registration form signed on 23 July 2009, he was appointed in Qaws 1386 (November/December 2007).
Despite the various rejections and need for second choices, President Karzai did manage to appoint nine members to their constitutionally determined multi-year single terms, as illustrated in Table 1. Those appointed for four years – Chief Justice Abdul Salam Azemi, Justice Zamin Ali Behsudi and Justice Muhammad Qasem – saw their terms expire in July 2010. However, instead of introducing new nominees to the Wolesi Jirga for confirmation, President Karzai extended their terms, using what the International Crisis Group (ICG) called “a legally dubious decree.” Azemi continued to serve as acting Chief Justice for four more years, until his resignation in October 2014.
On 23 October 2014, Ghani accepted Azemi’s resignation and appointed another member, Rashed, as the acting Chief Justice (BBC reports here and here), a post he occupied for almost a year, until July 2015, when the current Chief Justice, Halim, replaced him. This means that the Supreme Court was run by an acting head for five years, from July 2010 to July 2015.
It was only in May 2012 that the government tried to replace the two other members whose terms had expired in 2010 (at the same time as Azemi), and introduced Abdul Malek Kamawi and Sarwar Danesh (who would became Ghani’s second vice-president) to the Wolesi Jirga for confirmation. On 2 June 2012, it confirmed Kamawi and rejected Danesh (media report here). It means that out of the three members whose terms had expired in July 2010, only one was replaced and then only almost two years late; Chief Justice Azemi (as described above) remained in an acting capacity and it is unclear what happened after Danesh was rejected by the Wolesi Jirga, whether his place was left empty or filled by another acting judge.
The terms of the three members (Nawayi, Barakzai and Aziz) appointed for seven years expired in July 2013. One new member was appointed in September, Barat Ali Matin, confirmed by the Wolesi Jirga on 25 September 2013 and another two in December 2013, Din Muhammad Geran and Abdul Qader Adalatkhaw, confirmed on 25 December 2013.
By the end of 2013, therefore, six members of the Supreme Court should have been replaced, but in practice, only four had been. Of the other two, Chief Justice Azemi remained in an acting role until July 2015 and it is unclear whether the other member also carried on serving in an acting role or if his seat remained vacant. One of the three appointed in 2013, Geran later died on 20 January 2016.
By June 2016, three new members were appointed to replace Geran and the two judges whose terms had expired. They were:
- Sayed Yusuf Halim, confirmed as Chief Justice on 8 July 2015
- Abdul Hasib Ahadi, confirmed on 28 December 2015
- Muhammad Zaman Sangari, confirmed on 2 June 2016
The terms of the three members (Baha, Nasimi and Rashed) who had been appointed for ten years ended in July 2016. However, no attempt was made to replace them until two years later, in July 2018, when Ghani nominated Rasuli and Mahjur and Atayi in January 2019, but then never introduced them to the Wolesi Jirga for confirmation.
All this means that, except for the first four years of its existence, the final legal authority in the land, the Supreme Court, has never been composed according to the constitution. For the last four years, it has had only had six out of its nine members. The duty to appoint judges to the Supreme Court lies at the door of the president. Yet neither Karzai or Ghani has kept the Supreme Court fully staffed.
Many are deeply troubled by this. It is not just that, as the deputy head of Union of Lawyers, Wahid Farzayi, has contented, failure to complete the Supreme Court violates article 64, section 12 of the constitution; it lists the authorities and duties of the president, which include appointing the Chief Justice and members of the Supreme Court – with confirmation by the Wolesi Jirga. There are also practical implications. Member of the ICOIC Dr Abdullah Shafayi has said (quoted in Etilaat-e Roz’s report cited above) that when the Supreme Court is not complete, its activities will be slowed down and the quality of its work will suffer. He also believes it leaves the court vulnerable to be government influence, given it is easier to influence six members than nine, and this, in turn calls the independence of the judiciary – supposed to provide checks and balances – into question.
Independent Commission for Overseeing the Implementation of the Constitution (ICOIC)
The ICOIC was established only in 2010, six years after it was envisaged by the constitution. Since then, it has never been complete except for a short period from December 2015 to September 2017. The commission was established only after a controversy between the government and parliament in 2007. The parliament had impeached then Minister of Foreign Affairs Rangin Dadfar Spanta. President Karzai turned to the Supreme Court to enable Spanta to stay on. It sided with the President in a decision which the Wolesi Jirga did not accept. This controversy pushed the Wolesi Jirga to finally draft a law to establish the ICOIC, as called for in article 157 of the constitution (AAN’s analysis here). The law provided the ICOIC with a clear mandate to interpret the constitution, but this was later curtailed (more on which below). Moreover, both Presidents Karzai and Ghani never appointed its members as per the constitutional timeframe.
- Legal framework
Article 157 of the constitution envisages an Independent Commission for Overseeing the Implementation of the Constitution (ICOIC) to be appointed by the president and endorsed by parliament, but gives no other detail as to its mandate, authorities or number of members. This was deferred to the provisions of a law which was passed by the Wolesi Jirga on 31 August 2008. Article 4 of the law stipulates that the commission should have “seven members, including women and men, who are appointed by the president, after receiving a vote of confidence from the parliament, for a four-year term.”
Article ten of the law says the ICOIC needs five members to be quorate; decisions are then taken by majority vote; in the case of a tie, the side with the chair of that session’s vote is regarded as majority; regular meeting of the ICOIC will be convened once a week and; extraordinary meetings shall be called at the request of the president or parliament, the request of three ICOIC members or the decision of the chair. Article nine of the law spells out the authorities that can refer cases, arising from the provisions of the constitution, to the ICOIC, for legal opinions. They are: the president, either house of parliament, the Supreme Court; Afghanistan Independent Human Rights Commission, Independent Election Commission, Administrative Reform and Civil Services Commission.
Article 8 of the ICOIC law sets out its authorities: overseeing observance and implementation of the provisions of the constitution by the president, government, National Assembly, judiciary, administrative units, governmental and non-governmental organisations; providing legal advice to the president and parliament regarding issues arising from the constitution; providing specific recommendations to the president and National Assembly to take necessary measures for the development of legislative affairs, in the areas stipulated by the constitution; presenting reports to the president, in case violations and infringements of provisions of the constitution are observed; and approving relevant rules and procedures.
Two other paragraphs (1 and 4) in article 8 mandate the ICOIC to: 1) interpret the provisions of the constitution at the request of the president, either house of parliament, the Supreme Court or the government; and 2) review laws that are in force to find contradictions with the constitution and submit them to president and parliament to adopt measures to address them. After the Wolesi Jirga had passed the law, President Karzai sent it to the Supreme Court for review. On 14 April 2009, the Supreme Court issued a judicial decision stating that paragraphs 1 and 4 and some other parts conflicted with the Supreme Court’s own mandate (given in article 121 of the constitution). When the ICOIC’s law was gazetted in July 2009, it was published, together with the Supreme Court’s opinion, without clarifying whether or not the Supreme Court’s decision superseded the law (see AAN’s analysis here). This has remained an unresolved debate between the Supreme Court and the ICOIC. As a result it has never been clear who has the final say when it comes to interpreting the constitution.
Before the establishment of the ICOIC, the Supreme Court had been the de facto authority for interpreting the constitution. The government, based on the 2009 opinion of the Supreme Court, further watered down the ICOIC’s authority after it was established. The legal ambiguity created has provided ample room for political manoeuvring. In disputes with parliament, for instance, both President Karzai and Ghani have tended to count on the Supreme Court for rulings in their favour, while the Wolesi Jirga has often looked to the ICOIC.
The confusion came to a head again on 1 November 2020 when the Cabinet’s Law Committee approved a draft law, “Review of Compliance of Legislative Documents with the Constitution and their Interpretation” (readout here). The draft law, which still needs to be approved by the full cabinet before it is sent to parliament for a vote, grants the Supreme Court the authority to interpret the constitution. The very next day, however, the ICOIC issued a statement arguing that the authority given to the Supreme Court runs counter to the principle of separation of powers and that article 121 of the constitution only bestowed on the Supreme Court the authority to interpret ordinary laws, legislative decrees, international conventions and agreements and not the constitution.
The ICOIC currently has only four out of its seven members and thus lacks a quorum for its meetings. The term of those four members expired about 15 months ago and one had been absent and abroad for most of the last year.
The ICOIC had six members confirmed by parliament on 28 December 2015 and appointed by decree number 118 for four years on 31 December 2015: Muhammad Qasem Hashemzai, Dr Abdullah Shafayi, Dr Sayed Abubakr Mutaqi, Dr Abdul Rauf Herawi, Muhammad Aref Hafez and Ghezal Hares (see their biographies here). However, since September 2017, the commission has been incomplete when the term of the seventh member, Lutf ul-Rahman Sayed, who had overlapped with the previous round of members, expired and he was not replaced. The ICOIC lost another member when Ghezal Hares was appointed as ombudsperson on 10 August 2019, only months before her term was due to expire. She has not been replaced. Then on 5 September 2020, Abdul Rauf Herawi died (see the commission’s statement here). He had continued to serve as an ICOIC commissioner until his death, even though his term had already expired. He has also not been replaced.
On 25 October 2020, a member of the ICOIC, Abdullah Shafayi, told AAN that it only had three active members – himself, Muttaqi and Hafez – as the commission’s chair Hashemzai had been in the UK for the previous eight months. Hashemzai told AAN on 9 March 2021 that he had returned to Kabul a few days earlier, meaning, it appears, that he had spent most of the previous year abroad.
When the terms of the ICOIC members were about to expire on 31 December 2020, said Shafayi, they had sent three letters to the presidential palace, asking the president to either appoint new members or reintroduce them to the Wolesi Jirga for a vote of confidence. Shortly after, Second Vice President Danesh called the commissioners and told them they could and should continue with their duties, citing article 104 of the Electoral Law and arguing that their positions were “semi-elected” in that the appointments were made by the president and confirmed by the parliament. Shafayi concurred with this argument and referred AAN to the principle of continuation of service in public institutions, also seen, for example in France, as one of the reasons why the commissioners had accepted staying on after their terms had finished.
However, article 104 of the electoral law actually only refers to members of elected institutions staying on if there is a delay in holding a poll. Moreover, in 2014, three ICOIC members whose terms had expired but who had been rejected by parliament for a second term had not accepted this acting role (more on this below). One of them, Dr Amin Ahmadi, told AAN on 16 March 2021 that he had argued in an article that taking on an acting role in an institution which was supposed to protect the constitution lacked legal validity and as a result the institution could not work effectively to resolve conflicts and disputes.
On 23 February 2020, the Ministry of Finance sent a letter to the ICOIC saying the president’s office had informed it that the ICOIC head and members would continue their duties until the appointment of new members. It also said this decision had been made based on the president’s instruction and in consultation with the second vice-president. More than one year on, those new members have not been appointed and the ICOIC remains inquorate.
According to the law, the ICOIC should have seven members. Yet President Karzai only introduced six nominees to the Wolesi Jirga for confirmation in 2010 (according to rumours at the time, he had wanted to introduce then Chief Justice Azemi whose term was about to end, but this did not happen). The Wolesi Jirga approved five of the nominees on 10 June 2010: Gul Rahman Qazi, Sayed Omar Munib, Muhammad Amin Ahmadi, Abdul Qader Adalatkhwah, Mahbuba Huquqmal (the only woman – read AAN’s 2020 obituary for this extraordinary jurist here), while the sixth nominee (Samar Gul Ashraf) withdrew before the vote; see AAN’s report).
In 2010, therefore, the ICOIC started its activities with only five members. Over a year later, Abdul Munir Danesh was introduced to the Wolesi Jirga and confirmed as a sixth member of the ICOIC on 26 November 2011 (see media reports here and here). The ICOIC still needed a seventh member to be complete and its members were further reduced when member Sayed Omar Munib died on 26 February 2012.
Finally, in September 2013, more than three years after its formation, Karzai introduced two new nominees, Lutf ul-Rahman Sayed and Nasrullah Stanekzai. On 25 September 2013, lawmakers confirmed Sayed, but rejected Stanekzai (media report here). Then in December 2013, ICOIC member Abdul Qader Adalatkhwah was appointed to the Supreme Court, without being replaced. This brought the number of ICOIC members down again to five.
Things did not improve in the second round of the ICOIC’s existence. On 19 July 2014, when the terms of the three founding members (Qazi, Ahmadi and Huquqmal) expired, their nomination to serve a second term was rejected by MPs (media report here). Speaking to AAN on 10 March 2021, Ahmadi recalled that, after the MPs had rejected their nominations, he heard on television that President Karzai had appointed them as acting members. At the time, Ahmadi ruled out the possibility of them serving in an acting role in an open letter published by the daily newspaper Jamia Baz (the paper no longer exists). As a result, the ICOIC operated with only two members (Danesh and Sayed) for more than one year, until December 2015, when six new members (Hashemzai, Mutaqi, Shafayi, Hares, Herawi and Hafez) were appointed and confirmed.
The second round was also plagued by paralysing internal divisions, which were laid bare when, on 16 April 2017, six members of the ICOIC removed Hashemzai from the commission’s chairmanship and deprived him of his membership. The members informed the president’s office, the chief executive’s office and both houses of parliament of their decision, alleging that Hashemzai had failed to ensure the commission’s independence, had not upheld its good reputation and lacked leadership. The decision also cited health reasons (old age and weak memory), saying he was no longer fit to head the commission.
President Ghani did not accept his removal and instead established a governmental committee on 16 May 2017 to investigate both the decision and the commission’s activities. The committee was headed by then head of the legal board of presidential office Nasrullah Stanekzai. He sent a letter to the ICOIC asking it to send the evaluation committee all documents related to its “professional, administrative and financial performance” of the years 2015-2017. The ICOIC members perceived the intervention as a challenge to their independence, arguing that a governmental committee has no right to demand documents related to the professional performance of an independent commission (see AAN’s analysis here). After much back and forth and without it being clear if there was ever any report emerging out of the investigation, and indeed, despite being out of the country for most of the last twelve months, Hashemzai remains in post to this day.
The ICOIC, as Table 2 shows, remained incomplete for its entire first round, mostly having five members, and then, for more than one year (from July 2014 to December 2015) during its second round, only two members. The ICOIC has been complete for only two years of its 11-year existence (the first two years of its second round until Lutf ul-Rahman Sayed’s term expired in September 2017). Moreover, since December 2019, the ICOIC has been run by four acting members whose terms have all expired.
The presidents’ failure to fill the vacant seats or respect the ICOIC’s constitutional terms has rendered the commission unable to fulfil its mandate. For instance, on 14 April 2019, the Afghanistan Independent Human Rights Commission (AIHRC) referred a complaint to the ICOIC by former senator Bakhtar Aminzai asserting that Ghani had illegally dismissed him. On 27 October 2020, the ICOIC responded to the AIHRC, saying it was not possible for it to issue an interpretation because it lacked a quorum. It did, however, forward an opinion prepared by one of its departments to the AIHRC (more on this below, under the section dealing with the Senate).
The debate over which institution is constitutionally mandated to interpret the constitution – the Supreme Court or the ICOIC – has been clouded not only by the ambiguity over mandates, but also because both presidents have effectively sabotaged the ICOIC, leaving it mainly inquorate and unable to fulfil the mandate it believes the constitution gives it.
- Legal framework
Article 138 of the constitution stipulates that residents in each of Afghanistan’s provinces should elect a provincial council for four years through free, general, secret and direct elections. The constitution also specifies significant roles for provincial councils in the composition of the Meshrano Jirga (Senate) and any Loya Jirga, an ad hoc institution which can be called to amend the constitution, decide matters of “supreme national interest” and impeach the president. According to article 84, provincial councils should elect one-third of Meshrano Jirga members (senators) for a period of four years (corresponding to the term of the provincial councils). According to article 59 (paragraph 3) of the Electoral Law, the individuals elected to the Meshrano Jirga lose their provincial council seats and are replaced by whoever was the runner-up. Article 110 of the constitution also specifies that the heads of provincial councils would serve as members of any Loya Jirga called.
Article 139 of the constitution provides only a vague mandate for provincial councils: to participate in the development objectives of the state, improve the affairs of the province, and advise provincial administrations on related issues. As a result, from the very beginning, they have suffered from an ambiguously defined role and a lack of authority (see AAN’s analysis here). Article 6 of a more recent law on local councils of various guises (endorsed through presidential legislative decree No 350, dated 5 March 2019, and published in the official gazette No 1342, dated 14 April 2019 – see an online copy in Dari here) gives the following authorities to provincial councils: representing residents of respective provinces, hearing their complaints and recommendations and referring them to local administrations; advising respective provincial administration about provincial development programmes; participating in ensuring security, peace and stability of respective province; engaging in resolution of tribal and local disputes and conflicts through corrective jirgas and combating customs and traditions running counter to law and Islamic sharia; providing advice on employment opportunities to vulnerable people; encouraging people to pay taxes, enrol their children in education and hold national and religious ceremonies and; encouraging residents to support security and defence forces.
The first provincial council elections were held in September 2005, the second in 2009 at the same time as the presidential election and the third on 5 April 2014 (delayed from 2013). The election for the fourth provincial councils were due in 2018, but were delayed with plans to hold them, together with the presidential poll, in 2019. They have yet to happen, which means members have been serving extra-constitutionally since 2018.
- Current make-up of provincial councils
In the 2014 provincial council elections, a total of 456 members were elected to 34 provincial councils. AAN spoke to councillors from all 34 provinces in November and December 2020. With updates following the death in January 2021 of Ghor provincial councillor Ezatullah Bik – killed after he tried to fight off forces of the National Directorate for Security (NDS) who had gone to arrest him on assassination charges – and the death of Paktia provincial councillor Sardar Khan Malangzoi on 20 March, we found that currently, there are just 340 sitting provincial councillors. 117 councillors – more than a quarter – have resigned or died and not been replaced. One of the 34 provincial councils, Samangan has become inquorate as a result; it currently has only three out of the nine originally elected members while, according to article 39 of the Law on Local Councils, the quorum for meetings of a provincial council is a majority of the members. Table 3 shows a provincial breakdown of Afghanistan’s missing provincial councillors.
Article 103 (paragraph 1) of the Electoral Law stipulates that if a member of a provincial council (also of the Wolesi Jirga, district, village and municipal councils) is murdered, an election should be held in the relevant constituency for the remaining term, in accordance with the provisions of the law, if one year of their term of office remains. Of the 117 members missing from the provincial councils, 14 have indeed been killed, the first one, member of Nangrahar provincial council Angiza Shinwari, as early as 18 November 2018 and the most recent, Paktia provincial councillor Malangzoi on 20 March 2021. No such by-elections have been held.
Article 59 (paragraph 3) of the same law provides that if a provincial council member dies or resigns and/or holds any other official position under the law, and more than one year of the term of service of the relevant council remains, his/her seat should be given to the next candidate of the same sex with the most votes, based on the list prepared by the IEC.
Of the 117 members missing from provincial councils, 86 resigned to stand in the 2018 parliamentary elections, six resigned to move to other posts, three have died of natural causes, five have been suspended on corruption charges, one has been absent for the most part and two have left the country. Most, therefore, resigned to stand in elections. What has transpired has been a long-running and confusing administrative, legal and political muddle, initiated by the president. On 1 September 2019, about a month before the 2019 presidential election, President Ghani told the heads of provincial councils that those who had resigned to stand in the elections could return to their respective provincial councils if they lost in the elections, provided there were no legal obstacles (media report here). This statement was later confirmed in an 18 September 2019 letter (number 83) sent by the office of the senior presidential advisor.
Yet, nine months later, on 26 July 2020, another letter was sent between offices in the Palace trying to clear up this issue. The deputy head of the Administrative Office of the President for the coordination of public and political affairs and public outreach sent letter number 1040, along with a petition from former provincial council members who had resigned to stand in the 2018 elections, to the legal board of the office of the president, asking that the members be allowed to reoccupy their seats. The following month, on 15 August 2020, the legal board of the office of the president acknowledged it had received the petition and said the resigned members had made sure of the legality of their return to their provincial council seats with the Ministry of Justice, Administrative Reform Commission, the IEC and the Association of Lawyers.
Then, on 15 September 2019, the Department of Coordination of Council Affairs of the Independent Directorate of Local Governance (IDLG) wrote (letter number 303/148) to the Independent Administrative Reform and Civil Service Commission (IARCSC) to ask about the fate of these former provincial council members. In yet another letter (undated), the Director-General of the Civil Service Office of the IARCSC, Ahmad Masud Tukhi, replied that the issue was outside the civil service commission’s authority, since the provincial council members were not civil servants, and their issues fell outside the jurisdiction of the Civil Servants Law and the Labour Law.
The legal board of the office of the president (in its 15 August 2020 explanation cited above) had admitted that, according to the Electoral Law (article 59, paragraph 3), the seats of provincial council members who resigned from their positions should have been allocated to the candidate of the same sex with the next highest votes from the IEC list. Those next-best candidates had not taken their seats, it said. Even so, it still concluded that the resigned councillors’ demand was in line with the law and advised that the president’s verbal instruction for their reinstatement be implemented.
It seems highly likely that the president’s promise was made for campaign purposes, to win the support of influential provincial councillors. In so doing, he created a muddle which has effectively undermined the councils. His verbal instruction (then referred to in writing in letters from his office) on reinstating former provincial council members contradicted Afghan law on what happens when a councillor resigns or dies, not least according to the president’s own legal board. One could say there is some muddiness in what the law requires. The move to replace members resigning to stand in another election applies only when there is at least a year to go to the end of the term. Yet, the law could hardly be explicit about what should happen if councillors resign when there is less than a year to go before fresh elections, but these are postponed – in this case for three years and counting – itself a situation not sanctified by law.
Given that this situation was so grave, with a quarter of provincial council members missing, most of them resignations, the president should have asked the ICOIC or the Supreme Court for an opinion in the same way he sought a ruling from the Supreme Court to extend his term when presidential elections were not held within the constitutional timeframe in 2019 (see AAN’s analysis here).
- C) Internal administrative board elections
Article 5 of the Provincial Councils Law requires chairs, deputies and secretaries to be elected for one-year terms. The current provincial councils, however, held their last administrative board elections in November 2017. Constitutionally, their terms expired in 2018, the time when new elections should have been held.
A 29 November 2020 circular from the Director-General of the IDLG Shamim Khan Katawazi to provincial councils (AAN has seen a copy) highlighted this issue and stated the IDLG’s intention to hold elections for the administrative boards of provincial “simultaneously across the country” on 21 December 2020. It said this was to prevent “further legal disruption in working affairs and [ensure] better coordination of provincial councils.” The IDLG asked the provincial councils to hold the elections according to the procedure and email the results to the IDLG department for the coordination of local councils. To this end, the IDLG asked councils to coordinate with their provincial leaders, police chiefs, NDS and IEC provincial offices about security measures and technical support for holding transparent and peaceful elections.
The circular noted that, according to article 138 of the constitution, the provincial councils’ term had ended in Aqrab 1397 (October/November 2018), but that provincial councils continued to serve per article 104 (paragraph 6) of the Electoral Law, which stipulates that in case elections are postponed or suspended, members of elected bodies should continue to serve in their positions until elections are held and results are announced.
Two days before the planned date, on 19 December 2020, Katawazi sent another letter (number 402) to the provincial councils asking them to postpone their administrative board elections (AAN has seen a copy). The letter explained that the IEC had written a letter (number 3200) to IDLG on 14 December 2020 advising that it was preparing to hold general provincial council elections and that the provincial council administrative boards’ elections should be postponed “until further instruction.” The IEC announced on 20 December 2020 that it planned to hold provincial council and the never-held Wolesi Jirga elections in Ghazni, as well as mayor elections in some cities, in the autumn of 2021. In the meantime, the matter of electing provincial council administrative board members, which is supposed to be a yearly vote, remains unresolved.
That provincial councillors have been serving extra-constitutionally since 2018 stems from the way the constitution set up too many cycles of elections to be realistically held. Provincial council elections have only been held once, at the proper time, in 2009, but were held again only in 2014, after a one year delay. Even so, the missing quarter of councillors could have been dealt with. Those who had resigned could have been allowed to return, or the next-best candidates could have replaced them. Those who had died of natural causes should surely have been replaced by the next-best candidates. Instead, there has been a vacuum of representation at the provincial level. Noticeably, the president has issued decrees establishing other, informal councils of women and youths, which were inaugurated by Ghani respectively on 28 February and 28 March 2021, while the provincial councils, as elected institutions, remain in disarray.
- Legal framework
The Meshrano Jirga, the Afghan upper house, or Senate, according to article 84 of the constitution, should compromise 102 members. One third (34) are members of the provincial councils elected by their peers to serve as senators for four years (corresponding to the term of the provincial councils); one third should be elected by the yet-to-exist district councils for a period of three years (corresponding to the term of the district councils) and; one third are appointed by the president for five years (corresponding to the term of the Wolesi Jirga, the other house in Afghanistan’s bicameral parliament).
For the Meshrano Jirga to be properly instituted therefore, provincial and district councils have to be held. This was envisaged in articles 138 and 140 of the constitution. After the approval of the 2004 constitution, the first provincial council elections were held together with the parliamentary elections in 2005. The district council elections were not held at that time because clear district boundaries had yet to be defined (an issue resolved, albeit not conclusively in 2018, as we reported). They have still yet to happen because of logistical problems and deteriorating security.
- 34 senators to be elected by district councils
In 2005, when it became clear that district council elections would not be held, President Karzai referred the issue to the Supreme Court, which advised that the provincial councils should send not one, but two members each to the Senate (see this USIP briefing). As a result, when the Senate was constituted in December 2005, the 34 senators that were elected by provincial councils in lieu of the district councillors were, as per their biographies on the Meshrano Jirga’s website here, designated as ‘temporary senators’ (see the list of the 102 senators on pages 62-63 of this Meshrano Jirga report). The term of this particular group of senators expired in December 2008.
In late January 2009, the Wolesi Jirga held a heated debate about the legitimacy of the temporary senators and whether they anyway only had a three year term (district council members of the Senate were given a three year term there in the constitution). Some MPs argued that these Senate members had been illegitimate from the outset, as they had no mandate under the constitution. Others argued that the continuation of their work after three years would be illegitimate. In the end, the MPs agreed to form a joint commission of the two houses of parliament to look at the legitimacy of this group of senators and at how they were elected (media report here). In the meantime, the senators continued to serve until new provincial council elections were held on 20 August 2009.
After the 2009 provincial council elections, once again, two-thirds of the Senate members were elected by the provincial councils (AAN reporting here). This time, it was underpinned by a decree issued by Karzai on 20 February 2011 which authorised this as an interim measure. (See the list of the 102 senators on pages 27-29 of this Meshrano Jirga report).
The third and most recent provincial council election was held in 2014. This time, the councils sent only one senator each to the Meshrano Jirga, as there was neither a ruling from the Supreme Court, nor a decree from the president asking them to send a second member to compensate for the absence of district councillors. On the contrary, President Ghani issued a decree (which was read out by then chair of the Senate, Fazl Hadi Muslimyar, in a plenary session on 18 January 2015) declaring that the government intended to hold district council elections and that once elected, the district councils would send 34 members to the Senate. Until then, the Senate should continue with two-third of its members (see media report here).
Ghani’s decree is likely to have been driven by the stipulation in the National Unity Government agreement (full text here) to hold “district council elections as early as possible on the basis of a law in order to create a quorum for the Loya Jirga in accordance with Section 2 of Article 110 of the Constitution.” Constitutionally, district councils have a significant role in the composition of a Loya Jirga which, according to article 110 of the constitution, is comprised of members of parliament (250 from the Wolesi Jirga and 102 from the Senate), the heads of the provincial councils (34) and the heads of the district councils. Given the large number of districts – 387 and counting (it continues to increase) – the district council members would in fact fill more than half of the Loya Jirga seats (an AAN analysis of district numbers here).
District council elections were planned to be held together with the overdue parliamentary elections on 20 October 2018, but were postponed again for various reasons, including a lack of enough candidates to stand. The IEC argued that only 40 districts – less than a tenth – had an adequate number of candidates to compete; see AAN’s analysis here). All this has meant that, since 2015, one third of the Senate seats have remained vacant.
- 34 senators to be elected by provincial councils
Delays to the third and fourth provincial council elections from 2013 to 2014, and currently since 2018, means the 34 senators elected from these councils to serve in the Senate were there, extra-constitutionally (as were the 34 provincial councils serving in place of the not-yet-existing district councillors from 2013 to 2014).
The fact that provincial councils did not send members in lieu of district councillors to the current Senate has left it without one third of its members. This has effectively moved the Senate towards the government. While 68 members is still a majority of 102 Senate members specified by the constitution and so they can still make up a quorum and take decisions, given that half of the members, rather than a third are now appointed by the president, the Senate tends to act in favour of the government. This is the case especially given that the chair is usually a member from among the ranks of the appointed senators.
- 34 senators appointed by the president
The appointment of 34 senators by the president has also not been without its controversies and muddles. President Karzai appointed the first batch of senators on 10 December 2005, nine days before the first post-2001 parliament was inaugurated (media report here). However, he failed to appoint senators before the inauguration of the next parliament on 26 January 2011. This was driven by his refusal to inaugurate the parliament before investigations by a special election tribunal he had set up to look into alleged election fraud (media report here) reported back. Some of the elected senators (provincial and provincial as district council) at that time said this failure to appoint members would cause problems for the Senate, as members would not be able to elect the administrative board who organise and run the day-to-day business of the house. When, on 29 January 2011, the Senate did elect its administrative board without the one-third appointed members, President Karzai sought the ICOIC’s advice on the validity of this election. He finally appointed the 34 senators on 19 February 2011, about a month after the inauguration; see the list in this media report)
ICOIC chairman Gul Rahman Qazi argued that because the Senate chair’s mandate is for five years, he or she has to be elected from among the 34 appointed members. The commission’s final advice was to hold a new round of elections once the Senate was complete (AAN’s reporting here). The Senate, however, rejected the ICOIC’s opinion and Muslimyar, who had been elected to the Senate in 2009 by Nangrahar’s Provincial Council for four years, remained as chair. When his term ended, President Karzai reinstated him as an appointed senator (decree number 2894 dated 18 May 2014). The question then was whether he could legally continue as chair, given the expiry of his elected mandate and his having become an appointed senator. On 4 January 2015, the media reported that the Supreme Court had ruled that he could continue to serve as the Senate’s chair until the end of that parliament. The Supreme Court argued that the fact that he had now become an appointed member of the Senate did not disrupt his role as chair, but that his membership should be considered to have continued.
The term of this batch of appointed senators ended in early 2016. On 8 January 2016, Ghani issued a decree extending their terms until the end of that parliament (see the report by the presidential office here). The extension corresponded with the delay in holding the parliamentary elections that had been due in 2015. The senators were supposed to serve extra-constitutionally until the parliamentary elections, which were finally held in October 2018. However, on 10 October 2018, just before the elections, the media reported that Ghani had replaced at least nine senators during the previous year, including replacing four women with men: Nawaz Sharif Hayat instead of Shafiqa Nawruzkhel, Ghairat Bahir instead of Farida Kuchi, Yusuf Nuristani instead of Najiba Hussaini and Abdul Qader Nurzai instead of Rana Tarin. The authors could not find the public announcements of the appointments which should have been made. The report also quoted senator Jawid Rauf alleging that Hayat, one of the new senators, did not meet the legal age of becoming a senator.
Ghani had also dismissed several appointed senators. For example, after appointing Bakhtar Aminzai on 9 August 2018 to the Senate, he issued a decree, on 27 March 2019, to replace him with Attaullah Ludin. Aminzai lodged a complaint against the decision with both the Wolesi Jirga and the AIHRC, arguing that Ghani had dismissed him to prevent him competing with Muslimyar for the position of Senate chair (Muslimyar was subsequently re-elected after his opponent Shahzada [Prince] Mustafa Zaher, another appointed member, withdrew his candidacy). Later, in a private campaign rally meeting in September 2019, Ghani admitted that he had indeed used a decree to dismiss a senator who had wanted to run for chair (see the video here).
The AIHRC asked the ICOIC for an opinion about Aminzai’s case in a 14 April 2019 letter. An opinion made on 25 October 2020 (AAN has a copy) prepared by one of the ICOIC departments (the ICOIC lacks a quorum and therefore cannot take a decision) argued that the president has the authority to appoint one third of the Meshrano Jirga members, but does not have the authority to dismiss them before the end of their five year term. It based its argument on articles 84 and 108 of the constitution which determine the make-up and independence of the Senate, article 12 of the Senate’s rules of procedure and the principle of the separation of powers. Aminzai, however, did not get his seat back.
Currently, the Senate has only 68 out of the 102 members specified by the constitution. The missing members are the district council-elected senators or provincial council-elected senators sent in their stead. The 34 current members elected by their provincial councils have been serving extra-constitutionally since 2018. While the appointed senators are largely there as per the constitution, President Karzai’s final 34 appointees, who took up their seats in early 2011 served for almost three years from 2015 to 2018 beyond their term.
Conclusion: Problems with legitimacy and work
The trajectory of these four institutions shows they have not been established and consolidated as envisaged by the constitution. There has been a withering of these institutions and a sapping of their authority. Not only has their legitimacy been called into question, but also the work they have done – or have failed to do. The effects of this are most clearly seen in the Supreme Court, the most senior legal institution in the land, which acts as the court of last resort, and ultimate arbiter of legal questions, and the ICOIC, set up to consider constitutional questions. Both have been prone to manipulation by the legislative, and especially the executive branches. The role of both institutions in who interprets the constitution was made vulnerable by ambiguities within the constitution and a failure to make a decision by presidents and parliaments on who was the final authority. That ambiguity has left the institutions vulnerable, again, to manipulation. While the government has preferred the Supreme Court for any opinion and interpretation of the constitution, the parliament has looked to the ICOIC.
The fact that the members of these two institutions are appointed by the president and confirmed by the parliament has made them vulnerable to political interests. Both President Karzai and Ghani have shown a disregard for constitutional obligations in making appointments and in leaving these two important bodies incomplete for the most part. The lack of quorum for the ICOIC has left it unable to fulfil its constitutional and legal mandate, while the Supreme Court’s incomplete membership leaves it constantly exposed to being inquorate.
The four state institutions considered in this report are not the only ones that face a legitimacy crisis. Indeed, this report could have been twice as long, if we had looked at all the understaffed and incomplete bodies – the ministries, central bank, Attorney General’s Office, NDS and Red Crescent Society.
The heads of all of these bodies, according to article 61 (section 11) of the constitution, are nominated by the president and endorsed by the Wolesi Jirga. The ministers, under article 77 of the constitution, are responsible to the president and Wolesi Jirga for their duties. Important in this context is the Law on Acting Ministers and Officials which regulates acting roles in ministries, NDS, De Afghanistan Bank, Attorney General’s Office and Red Crescent Society; the acting period is limited to two months (article 4) and if (in article 5) a candidate fails to receive a vote of confidence from the Wolesi Jirga, s/he cannot be appointed in an acting capacity in the same ministry or agency.
A cursory look at the second term of President Ghani shows that these constitutional and legal provisions have not been followed, as they often were not during Karzai’s terms in office or during Ghani’s first term under the National Unity Government (2014-2019). On 25 August 2019, almost a month before the presidential election, Kabul daily Etilaat-e Roz published a detailed report saying that Ghani had never been able to complete his cabinet during the National Unity Government; there were always some acting ministers. It said that there were now 15 ministries, including those dealing with security run by acting ministers (AAN’s reporting here). Ghani was sworn in as president for a second term on 9 March 2020 and only completed his list of cabinet nominees after about seven months, on 6 October of the same year. Meanwhile, the Wolesi Jirga rejected five of the 25 nominees following three rounds of voting in late November and early December 2020. Yet the five rejected nominees (four ministers and one head of the central bank, see AAN’s analysis here) have continued to serve in an acting capacity.
Since then, three ministers have been dismissed: on 31 December 2020, Ghani sacked public health minister Muhammad Jawad Osmani (media report here) and a month later, on 28 January 2021, appointed Wahid Majruh as the acting minister of public health. On 23 January 2021, Ghani dismissed finance minister Abdul Hadi Arghandiwal and replaced with Muhammad Khaled Payenda as acting minister. On 19 March 2021, Ghani dismissed Masud Andarabi as minister of interior and replaced him with Hayatullah Hayat (see the announcement here). On 26 January 2021, Ghani nominated Hamidullah Faruqi for the Ministry of Martyrs and Disabled (and appointed him as acting minister through decree number 3042). The nomination came seven days after the ministry was upgraded from the State Ministry for Martyrs and Disabled to Ministry of Martyrs and Disabled (see the 19 January 2021 announcement here and the background here). Currently, out of a total of 24 ministers, eight are in acting role.
On 1 March 2021, Ghani accepted the resignation of Attorney General Farid Hamidi and, a month later, has still not nominated a replacement. On 7 February 2019, Ghani nominated Husn Banu Ghazanfar as the head of the Red Crescent Society and in a separate decree on the same day, also appointed her as acting head. Ghazanfar served in an acting capacity for around one and half years until her resignation on 31 August 2020. After her resignation, the deputy head of the Society, Mirwais Akram, served as acting head until the appointment of Dr Nilab Mobarez as acting head on 1 March 2021.
As long as ministers and other officials serve in an acting capacity, MPs can not sanction them with impeachment, which means they are only responsible to the president. Former legal advisor to Presidents Karzai and Ghani, Nasrullah Stanekzai, has written about the “chaotic situation” of what he calls the “fourth republic,” and how it faces both “the challenge of Emirate and internal crisis.” He warned that the “rulers of the fourth republic” should learn from the three previous republics which were not “overthrown by their external enemies but decayed from within and collapsed.” (See his article in Hasht-e Sobh on 10 October 2020.)
Our detailed look at four institutions and cursory look at other state bodies show how the legitimacy of constitutional institutions has been undermined by presidents enjoying too much power under the current political system. Notably, they have enjoyed this power despite being elected in disputed elections in 2009, 2014 and 2019. The withering by neglect or undermining by deliberate manipulation are a feature of, in the words of a previous report, “just how much Afghanistan’s political system is stuck in a dead-end” and how the country is looking more like “an oligarchic than a democratic system.”
Also to be noted is that the disregard for institutions and bodies mandated by the constitution has gone alongside what AAN’s co-director Thomas Ruttig described in a 2018 paper about political parties as the emergence “of a second, parallel political system.” He describes Karzai building up a ‘kitchen cabinet’ in the Palace of close officials and advisors and the unofficial Advisory Council of Jihadi Leaders and of how, with the advent of the National Unity Government in 2014, this system only partially changed. President Ghani has strengthened the role of his inner circle, including through the use of appointed councils such as the Development Council. At the same time, the cabinet has been disempowered and parliament kept on the margins.
Edited by Roxanna Shapour, Martine Bijlert and Kate Clark
This article was last updated on 7 Apr 2021
Constitutional Oversight Commission