With only nine months to go to the presidential and provincial council elections in April 2014, the two main laws that determine how Afghanistan’s elections should be conducted are still inching their way through the legislative process. It has been a long and winding road, accompanied by strong emotions and high stakes; this is, after all, about who gets to control the electoral process. And although it is not yet clear what the ultimate outcome is going to be, it is time for an update. AAN’s Martine van Bijlert, with input from Ehsan Qaane, takes a closer look at how far we have come and notes that the process is proving erratic, ad hoc and easily manipulated.
The two laws governing the conduct of the elections are the Law on the Structure, Duties and Privileges of the Electoral Commission (SDP) and the Electoral Law. Some of the more intrusive suggested changes, such as the proposal to have a mixed electoral system,(1) are no longer an issue. The main controversies between the parliament and the executive largely now revolve around how the main electoral commissioners are appointed and whether to have an electoral complaints commission, or not. This is important. What we are seeing is, to a large extent, a contest over who gets to appoint the people who organise and supervise the elections and ultimately control which votes get counted. As described in earlier analysis by AAN before and after the 2009 vote, the electoral competition in Afghanistan largely revolves around who can control the process, rather than who can mobilise most voters.
The Electoral Law
The Wolesi Jirga discussed the Electoral Law during April and May 2013, after its Legislative Committee had worked on the version it received from the Cabinet during March 2013. Discussions in the plenary session were limited to a list of eleven articles on which the parliamentary committees had earlier been unable to reach agreement. The discussions were concluded on 22 May 2013 and the law was sent to the Meshrano Jirga.
Earlier attempts to pass the Electoral Law in the run-up to the 2009 elections descended into an ethnically fueled brawl after discussions over the allocation of kuchi seats became unpleasantly heated. Protesting MPs boycotted the session for weeks, preventing the house from ever reaching the quorum required to pass the law.
This time round, the plenary discussion of the Electoral Law was also a bumpy affair, interspersed by consternation over the tit-for-tat corruption accusations between MPs and cabinet ministers (see the footnotes of this report for details) and the controversy over the Elimination of Violence Against Women (EVAW) law (for background see here, here and here). The Wolesi Jirga did manage to pass the Election Law in the end with only minor scuffles, but the way it was handled came at the expense of a proper discussion of the implications and even, indeed, of the actual contents of the adopted draft – as some MPs later found to their dismay.
The law was passed in five sittings, during which the eleven contested articles were discussed. In the first session on 29 April 2013 the Wolesi Jirga made some of the most sweeping changes to the draft: it voted against the newly introduced mixed electoral system, fixed the location of the count (at polling station level) and maintained the crucial practice of quarantining suspicious ballot boxes. It also removed the Special Tribunal, reinstating the Electoral Complaints Commission instead (see here) for a more detailed discussion of these decisions).
The second discussion of the Electoral Law, on 4 May 2013, revolved around the controversial issue of the designated kuchi seats in the Wolesi Jirga. During an earlier discussion there had been three alternatives, but on 4 May the most intrusive change (divide the 10 seats over 10 provinces and make the kuchi candidates compete with all other candidates) was dropped as a possibility. The discussion now focused on whether there should be a separate geographical constituency for each seat or whether the whole country would continue to be considered a single constituency. There was a rough ethnic split, with the kuchis and Pashtuns largely in support of the single constituency and most non-Pashtuns in favour of linking the seats to certain regions. The kuchis lost the vote and protested angrily, after which the session was swiftly concluded.
On 11 May 2013, the session voted on a few minor amendments. It decided that candidates for the mayoral election (which is mandated by the Constitution, but has yet to take place) must have lived in the city for at least five years. Professors and university teachers must resign from their positions if they want to stand in any election, as must elected officials if they want to stand for a different elected post.
On 14 May 2013, the session engaged in a long discussion, which lasted several hours, over the question of educational requirement for the various elected offices – the new requirements included a Masters degree for presidential candidates, a Bachelors degree for parliament, 12th grade education for provincial and district council candidates and the ability to read and write for village councils. Opponents of the change argued that this was an infringement of the right of all citizens to stand for office and that it was, moreover, unconstitutional to add more requirements than mentioned in the Constitution. The proponents, of course, argued that the Constitution did not preclude the adoption of more specific legislation. Both sides, ironically, produced a letter issued by the Independent Commission for the Supervision of the Implementation of the Constitution (ICSIC) to prove their case, after which the session decided to go back to the ICSIC to ask its views again.
The discussion was, interestingly, not revisited. On 22 May 2013, the head of the Legislative Committee simply reported that the view of the ICSIC had been received and incorporated in the draft law, after which the session proceeded to put the full law to the vote. It was passed with a quorum of 135, with 36 MPs voting against. And that was the extent to which the Electoral Law was discussed.
MPs, much later, found out to their dismay that they had passed a draft law from which the 25 per cent designated seats for women in the provincial councils had been removed. Interestingly, the issue of the female seats had actually been listed as one of the articles that were to be discussed in the plenary (see reporting here, towards the end) but had never made it onto the plenary agenda. The fact that it took MPs two weeks to realise what they had passed (and only after being told by an outside observer who had bothered to read the new draft law) shows how dysfunctional and unreliable the legislative process has become.
The decision to remove the designated female seats was reversed by the Meshrano Jirga on 26 June 2013, which means that this will become one of the issues that is to be hammered out in a joint committee.(2) The process will obviously be closely scrutinised. It also has the potential to become quite nasty, as some of the more extreme and vocal MPs will probably use this again to portray all the international attention as an unacceptable and morally corrupting external interference. These are the same MPs who continue to regularly and aggressively bring up the EVAW law in the parliamentary sessions.
The Law on the Structures, Duties and Privileges of the Electoral Bodies
The Wolesi Jirga also discussed and passed the Law on the Structures, Duties and Privileges of the Electoral Bodies (SDP) that had already been passed by both houses, but was then rejected and sent back by the President.
A letter from the Ministry of Parliamentary Affairs, dated 29 April 2013, gave eight reasons for the earlier rejection. Most of them focused on the existence or practical implications of the Electoral Complaints Commission (ECC). The letter respectively argued that the ECC, as a permanent supervisory electoral body, was in itself against the Constitution (as the Constitution only mentions the Independent Electoral Commission); that the ECC should be either fully made up of judges or not at all (in the draft the Supreme Court nominates three – out of eight – candidates for the five positions); and that it is impractical to allow both the ECC and the IEC to suggest amendments to the electoral law, as they may have conflicting views; that the nomination procedure for the selection committee for the ECC is respectively impractical, not described in the Constitution, limits the powers of the President and in contradiction with the separation of powers. It also noted that the appointment of ECC members for 6 years represents an excessive financial burden, is against the law, and facilitates corruption, and pointed out that the law had a large number of technical shortcomings and contradictions. The letter presented an amalgam of views – from the Supreme Court, the Independent Commission for the Supervision of the Implementation of the Constitution (ICSIC), the Ministry of Justice and the Legal Board of the Presidential Office – that were partially contradictory.
The Wolesi Jirga discussed the SDP law again on 8 and 10 June 2013. They agreed to some minor amendments of their own earlier version: the removal of the word ‘Independent’ from the name of the complaints commission, a slight simplification of the rather unwieldy selection and nomination process for the ECC and IEC commissioners, making the Wolesi Jirga Speaker chair of the selection committee and mandating the establishment of a joint commission in case of disagreements between the IEC and the ECC. They ignored the other objections.
The meeting then descended into a heated discussion on how the new draft should be treated: as a rejected draft that the Parliament wants to pass into law anyway which would require two thirds of the vote, or rather as a normal new draft law which would only need a simple majority – but would need to go through the whole process again. The meeting ended without a conclusion, partly because the MPs who opposed the simple majority vote left and broke the quorum. When on 10 June 2013 the session threatened to get caught up in the same stalemate, with the discussion moving towards a walk-out again, Wolesi Jirga Chair Ibrahimi took a quick vote before the protesting MPs had actually left. He then argued that because they had still been present they counted towards the quorum, even if they had not been in their seats or participated in the vote. Of those who had voted, all had raised their green cards. The session ended in some discord, but the issue was not raised again and the draft was sent to the Meshrano Jirga.
The Meshrano Jirga debated and passed the draft law on 23 June 2013. It reversed some of the changes the Wolesi Jirga had made (for instance reinstating the mention of ‘Independent’, removing the Wolesi Jirga chair as head of the nomination selection committee and removing the joint committee in case of disagreements). This means that the two houses will again need to discuss and solve the differences in a joint committee.
As expected, the passing of the electoral laws has become a rather protracted and winding affair. The Independent Electoral Commission has expressed its concern, stressing that if the laws are not finalised before the parliamentary recess, the elections will again take place based on the old legislative decree.
The delay in passing the laws means that, less than a year before the next election, important issues, such as how the handling of electoral complaints is to be structured, how the members of the electoral bodies should be selected and who can run for office, have still not been settled. And even if the laws are passed, the current back-and-forth has resulted in drafts that are full of technical errors and internal inconsistencies. It is difficult to imagine this being rectified in any of the stages ahead.
(1) The proposed mixed system was quite complicated, with one third of the Wolesi Jirga seats elected through a party-based, proportional representation (PR) vote, and two-thirds through the current SNTV system, which is a rare form (multi-seat constituency) of the, in itself rare, Single Non-Transferrable Vote (SNTV). Read an earlier AAN analysis of this proposal here.
(2) The full electoral law was passed by the Meshrano Jirga on 1 July 2013, after several sittings. The Meshrano Jirga has also made other amendments, including a designated seat for Hindus in the Wolesi Jirga, which had been part of earlier discussions, seven electoral constituencies for the kuchis and the allocation of 25 per cent of all seats in the village, district and provincial councils to women. It backed the Wolesi Jirga’s proposal that candidates for that house need to have a Bachelor’s degree at least. It also put its support behind the ECC’s role of announcing the elections’ final results and as the only authorised institution to handle complaints. It did not find a common position of how a theoretically possible postponement of elections will be handled and dropped its initial proposal to add special political party seats in the Meshrano Jirga.
This article was last updated on 9 Mar 2020