The procedures to cope with the electoral fraud in Afghanistan become more and more complicated, as is the relationship between the Independent Election Commission (IEC) and the Electoral Complaints Commission (ECC). The following guest blog authored by our partners from ARGO in Italy bring light into the affair.
In the Afghan electoral field two bodies have the legitimacy to take anti-fraud measures: the Independent Election Commission (IEC) and the Electoral Complaints Commission (ECC). The Afghan Election Law, passed in 2005 by Presidential Decree(1), still reflects the spirit of the transitional period when many domestic functions were carried out by foreign actors. Thus, while the main electoral administrative body acquired an Afghan identity after the 2005 parliamentary election when the IEC overtook the functions of the internationally led Joint Electoral Management Body (JEMB), the ECC is still composed by a majority of international commissioners.(2)
The IEC is envisaged by the 2004 Constitution, who does not clarify the procedure for appointing its members. Despite the attempts to substantiate its ‘independent’ nature by a wide-based appointment mechanism, its commissioners were eventually appointed by the President without consulting with any other institutions.
According to the law, the IEC has the authority to certify the election results, but can only do so after the ECC has adjudicated all the complaints on polling and counting. Moreover, the IEC can determine that the election has been flawed and may order the re-run of the polling in a constituency.(3) The law does not give the IEC the explicit authority of nullifying fraudulent results, although it may be argued that such authority is implicit in the IEC constitutional mandate of supervising the elections that, according to both the Constitution and the Electoral Law, must be held through ‘free, general, secret, and direct vote’. Moreover, following the 2005 parliamentary and provincial council’s elections, the JEMB did take on itself most of the burden of disqualifying fraudulent votes.
Based on these general principles and precedents, the IEC had in fact attributed itself the authority of dealing with electoral offences, through a number of regulation and guidelines adopted prior to the 2009 elections. Notably, the IEC Regulation on Counting, article 15 (Tally center), provides that in case of evident sign of fraud, the IEC can declared null and void the relevant results and ballot boxes.
On the other hand, the Electoral Law affords the ECC the authority to deal with electoral offences. Among other sanctioning powers(4), the ECC has that of invalidating ballot papers or groups of them that not meet the conditions for validity. The ECC, prior to the certification of results, can also order a recount or a repeat of the voting. As already mentioned, the adjudication by the ECC of all complaints concerning polling and counting is a precondition for the IEC to certify the results of elections.
Throughout the 2009 election, the IEC had consistently acted in line with the intention to oversight the integrity of the process. During the tallying phase, ‘triggers’ were identified in order to highlight potential frauds committed during the polling and counting.
At a press conference on 6 September 2009, the IEC announced the partial results for the presidential elections, based on 74.17% of polling centers processed. In that occasion the IEC claimed the ‘overall authority for the free, fair and good conduct of the elections’ and informed that ‘in case it is determined that any fraud or wrongdoing has taken place, or any of the results are not correct, one of the following decisions will be taken: A recount may be ordered in some of the polling stations; some results may be totally annulled; some cases may be referred to the ECC.’ Based on that, the IEC announced that as the result of the investigations conducted the votes cast at a total of 447 (5) polling stations had been annulled.
On 7 September the IEC decided to reverse the decision of annulling those results and rather to quarantine them and refer the cases to the ECC for further investigations. In fact, the commissioners had established that the law did not grant them the power to nullifying ballots.
On 8 September, the ECC adopted an Order, with which it reported that in the course of its investigations it had found clear and convincing evidence of fraud in a number of polling stations. Thus ECC ordered the IEC to conduct audits and recount of the ballot boxes included in the preliminary results of the presidential elections that raise significant suspicion of fraud due to: (1) the total number of ballots in a polling center being equal or greater of 600; or (2) the number of votes casted for any candidate in a polling station being 95 percent or greater.
Following a lengthily negotiation between the two bodies, on 5 October they agreed that, giving the time that an individual examination on all the ballot boxes affected by the order would take, they would investigate a representative sample of them. Therefore, out of the total 3498 polling stations covered by the order, they selected a random sample of 358 ballot boxes. The audit and recount started on 5 October, at the presence of ECC and IEC staff, as well as observers and candidates’ agents, and is expected to be finalized by the end of the week.
However, the completion of the recount will not exhaust the duty of the ECC, which still needs to adjudicate most of the complaints received during the polling, counting and tallying stages. A total number of 2584 those complaints were taken in, out of which 893 were assessed as priority A, meaning those with a potential to affect election results. All the 34 provinces, although with a different intensity, have some priority A complaints. As of the 7 October, on the ECC website only the decisions on 5 provinces have been posted (6). The results of 12 polling centers and 87 polling stations in those provinces were invalidated or, in few case, corrected. The decisions related to the remaining 29 provinces are still pending.
In the meantime, on 16 September, the IEC had released the full preliminary results, according to which the incumbent Hamid Karzai won with a majority of 54.6% of the 5,662,758 valid votes cast. Those results can only be certified once all the cases are adjudicated by the ECC and keeping into account its decisions to invalidate ballots.
(1) An attempt of reforming it was made by the Parliament in 2008 but was not finalized.
(2) Of its five members, three are appointed by the Special Representative of the UN Secretary General, one by the Afghan Independent Human Rights Commission and one by the Supreme Court.
(3) Since presidential election is based on a national constituency, a hypothetical re-run of it would concern the whole country.
(4) The other sanctions are: issue a warning or order take remedial actions; impose fines; remove candidates from the list; prohibit an offending individual from serving in the IEC or its Secretariat.
(5) In the English translation of the press release the number is 477, but in the Dari version is 447.
(6) Wardak, Ghazni, Paktika, Herat and Kandahar.
Check the Italian original on ARGO’s website here.
This article was last updated on 9 Mar 2020