Political Landscape

Pushing the Parliament to Accept a Decree: Another Election without Reform?


Electoral staff and observers wait for the 2014 audit to resume.

Controversies surrounding the second round of Afghanistan's 2014 presidential election resulted in an audit of every single ballot that had been cast. Electoral reforms ahead of the upcoming parliamentary vote were supposed to prevent a repeat of past turmoil. Picture: Kabul, August 2014, by Martine van Bijlert.

Afghanistan’s electoral reform process, that was supposed to be a precondition for the next ballot, has been excruciatingly slow and has culminated in a watered-down version of its original mandate. The delays mean that it has by now become practically impossible to hold elections this year. The presidential palace, however, continues to insist that both elections – for Wolesi Jirga and district councils – will take place in mid-October, as planned, and has increased pressure on parliament to pass a crucial decree. AAN’s Martine van Bijlert and Ali Yawar Adili take a closer look at the intricacies involved, as the parliament prepares to discuss the decree.

A stalled reform process

When the two rivals in the 2014 presidential election agreed to form a government of national unity in September 2014, elections and electoral reform played a central role in the negotiations. Both were explicitly included in the political agreement signed by the two sides. The commitment to electoral reform was a concession to the Abdullah camp, as was the explicit inclusion that both Wolesi Jirga and district council elections would be held in time to allow for a Loya Jirga (to discuss the post of executive prime minister) within two years. (1)

The main vehicle driving the reform process was the Special Electoral Reform Commission (SERC), which was mandated by the political agreement. It was established with considerable delay, after the president initially tried to monopolise the reform portfolio by giving it to his second Vice-President Sarwar Danesh, and amid controversies over its composition and authorities (see here and here for more detail). When the commission was finally operational, it prepared two batches of recommended reforms. The first batch of recommendations was partly adopted in September 2015 and the president issued two decrees (84 and 85) amending respectively the Electoral Law and the Law on the Structures, Authorities and Duties of the Electoral Bodies (or Structure Law, for short).

The amendments to the two laws based on the SERC’s recommendations, at the time, included: the establishment of voter lists based on voters’ tazkeras (ID documents); changes in the composition of the Selection Committee for the electoral commissioners of the Independent Election Commission (IEC) and Independent Election Complaints Commission (IECC); changes in the composition and tenure of the IEC by decreasing the number of commissioners and staggering their terms of service; changes in the requirements for IECC commissioners; changes in the composition of the Wolesi Jirga (introducing an extra, separate seat for Sikhs and Hindus) and the provincial and district councils (fixing the 25% women’s quota); and the employment of school teachers and other civil servants as temporary electoral personnel. A Dari/Pashtu soft copy of these decrees, that were gazetted but later rejected by parliament, can be found on the Ministry of Justice’s website here.

A second, further-reaching batch of recommendations was presented to the government on 21 December 2015, proposing changes to the electoral system and electoral constituencies, and the establishment of a special electoral court. However, on the same day that the SERC presented its second batch of proposals, the Wolesi Jirga voted down the presidential decree from September that amended the Structure Law. Five days later, on 26 December 2015, the Wolesi Jirga also rejected the second decree amending the Electoral Law. On 5 January 2016, the Meshrano Jirga followed suit and voted down both decrees without discussing the merits of the amendments.

With parliament’s rejection of both decrees, the electoral reform efforts had to start all over again. The Independent Election Commission (IEC), emboldened by the SERC’s setback, said it hoped the president would now stop sending decrees to parliament and on 18 January 2016, the IEC announced the date of the election. The IEC announcement and choice of the date did not, in the first place, seem informed by technical and logistical considerations, but rather seemed aimed at regaining the initiative and to sidelining those pushing for reform.

Two new decrees

On 5 March 2016, exactly two months after both houses of parliament had rejected the previous decrees, the government announced that the president had issued two new legislative decrees. The new decrees were watered-down versions of the earlier ones, with the most important reversals affecting the selection process for the composition of the electoral bodies.

The decrees – 158 and 159, dated 28 February 2016 – endorsed the draft Electoral Law and Structure Law, as apparently approved by the Cabinet on 10 February 2016 (approval number 40). (2) They were published in the official gazette on 16 March 2016 (issue 1207), together with the amended laws, which from that moment onward, had the force of law – unless and until they were rejected by parliament. A Dari/Pashtu soft copy of the decree and the laws is available on the Ministry of Justice’s website here.

According to one of President Ghani’s deputy spokesmen, Sayed Zafar Hashemi, the president consulted members of both houses of parliament before issuing the decree and expected “the parliamentarians [to] cooperate with the government in bringing electoral reforms.”

However, for several weeks after the decrees were issued it was unclear whether the president did indeed intend to send them to the Wolesi Jirga, as required by the constitution. (3) There were indications that the Palace was considering sending the decrees to the Supreme Court for a ruling instead, under the justification that the parliament was in its last working year and no longer allowed to discuss electoral laws – an unresolved debate that has been treated differently every time it was held, depending on the desired outcome. (4) In the decrees themselves, there was also no mention that they were to be submitted to parliament (in the previous decrees – the ones that were voted down by the parliament – article 2 had required the Minister of Justice and the State Minister for Parliamentary Affairs to submit the decrees to the Wolesi Jirga within 30 days after the first session was convened, in accordance with article 79 of the constitution).

The presidential palace argued that the laws were valid and could be enforced and that, in particular, the Selection Committee could restart its work. Amir Hussain Hussaini, chief of staff of Vice President Sarwar Danesh, told AAN on 14 April 2016: “We think the laws are effective because they have been published. The Selection Committee [for the two electoral commissions] can continue its work based on these laws.” Vice President Danesh, when introducing the nominees for the positions of Minister of Interior and Attorney General to the Wolesi Jirga on 4 April 2016, said something similar:

The national unity government, while emphasising the preservation of the spirit of cooperation and harmony between the executive and legislative branches of power, is fully prepared to adopt all necessary measures to hold the elections this year by implementing electoral reforms. In this respect, I should announce that the Selection Committee will hold its first meeting and formally start its work in these days. Expressing thanks to Mr Ibrahimi, respected speaker of the Wolesi Jirga, and Mr Muslimyar, respected chairman of the Meshrano Jirga, who accepted the membership of this committee, I would like to ask them and other respected members of the Selection Committee to fulfil their legal duties at the soonest, so that the new election and electoral complaints commissions are established and, by addressing the technical and financial problems and providing appropriate opportunity, general and fair elections are held in the country and our seventeenth legislative round sets to work in an appropriate political setting.

The Selection Committee, however, had already started working once before, only to have to stop again when the decree underpinning its composition and authorities was rejected. So the committee made it clear they would not begin until the presidential decrees had been endorsed. With this decision, the whole electoral process stalled. Without a Selection Committee, there could be no candidates for the IEC and IECC, and without clarity over who would be in the new IEC (and whether all parties considered the members credible and legitimate), it would be very difficult to credibly start organising the elections.

So, on 23 April 2016, after 48 days, the Palace finally sent the decree on the Structure Law to the parliament. This is the decree that determines, among other things, the composition and authorities of the Selection Committee. The Palace did not send the decree on the Election Law.

All eyes on the parliament

The decision to finally send the decree — one, not two — happened in the midst of a wider, political wrangle in which the president sought to rally parliament in support of a new government security plan and parliament, in response, presented a set of conditions, including the sending of the decrees. Two days later, the president addressed both houses of parliament in a special joint session and asked parliament to pass the decree:

“Esteemed MPs, senators, sisters and brothers, all of our people stress the need for reform and a fundamental change. We are committed to honouring our promises in this regard. Reform of the electoral bodies has started and elections will be held on time. I request both houses of parliament to pass the [electoral] law submitted to them, as soon as possible.”

The parliament has been slow to get to work. It was preoccupied with other issues and plagued by a crippling absenteeism that has left sessions and committee meetings paralysed (most of the time, there are simply not enough MPs present to form a quorum to vote or meaningfully discuss anything).

The Wolesi Jirga is also split on how to deal with the decree they have been sent.

Some MPs and other observers had initially been fairly optimistic. Days after the decree was received, Haji Muhammad Abduh, an MP from Balkh and member of the Judicial Commission, told AAN he believed that, “this time, the decree would likely be approved; the president also called on the two houses to do so” (he, however, also thought there would be changes to the law, but said it was too early to predict what they might be). Naim Ayubzada, the director of TEFA (Transparent Election Foundation of Afghanistan) and member of the Selection Committee, had said something similar on 13 April 2016 (this was before the decree was sent to parliament), when he told AAN that the speaker of the Wolesi Jirga speaker and the Chairman of the Meshrano Jirga, who according to the new law were now also members of the Selection Committee, had indicated they would approve the decrees if submitted.

Now, six weeks later, Abduh is much less optimistic. He was quoted on 3 June 2016 by Tolo News saying that the views of 12 out of 15 parliamentary commissions had been collected and that half of them agreed with the decrees and half of them opposed them. (However, due to the patchy attendance, in particular in the committee sessions, he could easily be referring to the opinions of a handful of MPs only).

The decree has apparently been put on the agenda for tomorrow, 11 June 2016. According to several MPs, there have been concerted campaigns by the opponents and proponents of the decree to get it either rejected or passed. Judging by how such sessions have gone in the past, the meeting could well descend into heated discussions or even a brawl (a trusted delaying tactic).

MPs opposing the decree argue that it should be rejected, because it was not sent to the parliament within 30 days, as stipulated in the constitution. Others oppose the decree on substantive grounds, arguing that the government has failed to bring the needed electoral reforms and that the decree does little else but change the composition of the Selection Committee for the electoral commissions. A third group says they would act (either to reject or amend the decree) because they do not want the president and CEO to monopolise the election and divide the electoral bodies between them.

MP Mawlawi Nazir Ahmad Hanafi, for instance, said that “the presidential decree has two problems; the first is that it only deals with the structure and authorities of the commissions, and [within that] only with the selection [of the commissioners] and working procedure; and the second is that the decree should have been sent within one month of the resumption of the house’s session, but [instead] the decree was submitted to us after almost two months.”

Mawlawi Mir Rahman Rahmani, an MP from Balkh province, said something similar when he addressed the session on 21 May 2016: “Everyone thinks that the Wolesi Jirga has taken the presidential decree on electoral reform hostage. But according to the constitution, the decrees should have been sent to the house within 30 days; they were not sent within this given timeframe. This means that, legally, the decree is not valid and parliament should reject it at once.” He also added that, rather than reforming the election commissions, the only thing the decree did was give legitimacy to the Selection Committee and serve the interests of “a few people.”

Others were of the opinion that, although the constitution had indeed been violated, this did not, per se, invalidate the decree. Muhammad Sarwar Osmani, a member of the judicial commission of the Wolesi Jirga, for instance, told AAN on 24 May 2016, that although sending the decree late “is a violation of the law, the decree is still effective.”

Several MPs argued that the decree needed further amendments, and that, rather than rejecting it, the parliament should be sent a document they could work on. MP Mir Bad Khan Mangal, for instance, told Mandegar that “the decree needs amendments, but according to its principles, the house does not have the right to make amendments to a legislative decree. Instead of the decree, the government should send the draft law on Structure, Duties and Authorities of the Electoral Commission, so that the different views can be included. The legislative decree is not convincing or acceptable to the members of the house.”

Other MPs, however, believe they are in a position to amend the decree and, apparently, several amendments have been suggested, although the extent of support for them is unclear. Such amendments include a stipulation that the members of the electoral commissions should ultimately be appointed, not by the president alone, but in consultation with the chief executive.

The main controversial amendment

Most controversially, the new Structure Law decree has, again, changed the composition of the Selection Committee. The Selection Committee is the body that gathers and vets the applications for the posts of IEC and IECC commissioners and then presents a shortlist of candidates to the president for him to choose from. It is thus a very influential body, as it determines the range of choices the president has in appointing the people who will manage the next election (and who, in all past elections, have been accused of bias and rather sophisticated manipulation).

The IEC and IECC have always argued that there was no need for such a committee at this point, as the term of both electoral bodies had not yet run out. They were appointed in July 2013 by President Karzai and their tenure is supposed to be unrelated to who is in government. The IEC and IECC commissions’ point, therefore, has always been that replacing them was unnecessary, unlawful and harmful to the election process.

In practice, however, the electoral bodies have been changed in the run-up to every single election so far. In most cases, it was the push for electoral reform that was used to make sure this was necessary. It is in this respect useful to remember what has been noted in earlier AAN analyses (here and here ) on the recent ‘electoral reform’ drive:

“What can easily be overlooked in all these controversies about detail is the fact that what MPs call ‘electoral reform’ is actually very limited, aiming primarily at getting rid of the electoral commissioners” and “Although everyone is talking about ‘reform’, the wrangling really boils down to a struggle for control of the electoral bodies and, ultimately, the outcome of upcoming elections.”

The CEO’s camp has always insisted on the full replacement of both electoral bodies, while the president’s camp has shown great reluctance to do this.

What complicated the matter is the fact that the Selection Committee had already been established in December 2015, based on the previous decree establishing the Structure Law, and had started its work. After its first meeting on 31 December 2015, it announced a ten-day period (2-12 January 2016) for the submission of applications. However, when the parliament voted down both decrees, the work of the committee came to a halt and it has been inactive ever since.

The new presidential decree, gazetted in March 2016, changed the composition of the Selection Committee. It replaced the media representative and representative of the Independent Administrative and Civil Service Reform Commission (IACSRC) with the speaker of the Wolesi Jirga and the head of the Meshrano Jirga. The various institutions – the Supreme Court, the Afghan Independent Human Rights Commission (AIHRC) and the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC) – are no longer represented by an internally elected member, but by the heads of these organisations. From the previous selection committee, only the two elected civil society representatives have kept their seats. (5)

The ‘new’ composition largely reverses the reform suggestions made by the Special Electoral Reform Commission (SERC). When the SERC removed the heads of the Wolesi and Meshrano Jirga chairs from the original selection committee, it did so because they would likely have an obvious stake in the upcoming elections. The SERC also recommended replacing the heads of the Supreme Court, AIHRC and ICOIC with internally elected members, as they believed the heads might be more prone to government influence.

Some of the civil society organisations involved in the elections have criticised the changes to the composition of the Selection Committee. Habib ul-Rahman Nang, a member of the Afghanistan Civil Society Election Network (ACSEN) said the appointment of the heads of the two houses of parliament and of the Supreme Court “is against article 152 of the Constitution and brings the legal credibility of the committee into question.” Speaking to AAN on 14 April 2016, Jandad Spinghar, head of ACSEN and former advisor to the CEO on electoral reforms maintained that the committee would now be more prone to influence by the government. He said it was a “sort of deal [of the government] with parliament to manipulate the process.” He further criticised the government for disregarding the SERC’s recommendations and for dropping its long-term recommendations package (which included changes in the electoral system).

Shah Sultan Akefi, the former chairman of SERC, specified the three points relating to the Selection Committee, that were in the original reform package and have now been dropped by the government: (a) the government has reverted to the old composition, bringing back the heads of the two houses of the parliament into the committee, with as the only change from the last election, the inclusion of a women’s groups representative; (b) while the SERC had suggested decreasing and staggering the terms of the IEC commissioners (some to three and others to five years, so that not all would be replaced at the same time), the government increased them all back to six years; and (c) while the SERC had reduced the number of IEC commissioners to seven members, the government raised it back to nine.

Changes based on the SERC’s recommendations that were retained include: the establishment of voter lists based on voters’ tazkeras (ID documents); changes in the composition of the Wolesi Jirga (extra, separate seat for Sikhs and Hindus) and the provincial and district councils (25% women’s quota); and the employment of school teachers and other civil servants as temporary electoral personnel.

If the decree is passed

If the decree is passed, the Selection Committee can start its work and it has already indicated that it intends to do so. It will probably announce a new round of applications, given that the previous round was cut short when the decree was voted down. Also, the Selection Committee had received only a small number of applications from women (36 out of a total of 400). Moreover, the new members of the Selection Committee may have friends whom they want to encourage to apply. Members of the Selection Committee have indicated that they are operating under the impression that the president and CEO intend to replace both commissions in full. They will thus send lists for the maximum number of candidates (27 for 9 IEC positions, and 15 for 9 IECC positions).

It is, however, not obvious from the law that any of the commissioners are up for replacement, other than the former IEC Chair, Yusuf Nuristani, who resigned on 26 March 2016. (6) The previous decree had changed both the number of commissioners and the duration of their tenure (at least for some), making a wholesale overhaul of the commission a more likely scenario (how otherwise to decide which commissioners to keep and which to discard and to give the shorter tenures?) At the moment there is no such legal reason for replacing the sitting commissioners. There also does not seem to be a solid political agreement between the president and the CEO on this matter. This means that the discussion on which commissioners are to be replaced, and how many, may still need to be had. Theoretically, although this would be politically very controversial, it seems the president could still choose to replace only Nuristani.

Practical improbabilities

Over the last weeks the government has consistently and increasingly reiterated its commitment to holding the elections, on time, as planned. On 30 May 2016, the presidential office released a statement suggesting practical preparations, discussed during a meeting of the National Security Council that had been chaired by the president:

Reconfirming the full commitment and will of the government to hold the Wolesi Jirga and district council elections, the National Security Council thoroughly reviewed the initial report of the security plan for the elections and gave necessary instructions to relevant agencies to finalise the election security plan. Also, the National Security Council instructed the Ministry of Finance to continue to review the funding required for the election with donors, and to assure them of the commitment of the Afghan government to honour its pledge to pay the election costs. Reiterating the importance of holding elections, the National Security Council instructed relevant institutions to accelerate making the legal plans of the election process.

 On 8 June 2016, Vice-President Danesh reiterated the message, when he finally formally introduced nominees for the posts of Minister of Defence and General Director of the National Directorate of Security. He invoked the joint responsibility of the government and the national assembly, the will of the people and the preconditions of the donors:

At the end, I would like to convey to you another message from government. As you are aware, the government, based on its legal duty, is determined to hold Wolesi Jirga and district council elections this year. Holding elections is a joint responsibility of the government and the national assembly. The people of Afghanistan, including all political parties and civic organizations, demand it. The international community has also set the holding of elections and electoral reforms as a precondition for their political and financial commitments at the Brussels conference.

 The security, financial and technical preparations are being completed by the government. A few days ago a letter was sent by the president to the Secretary General of the United Nations Ban Ki-Moon regarding the government’s readiness to hold elections, asking for assistance and support in this regard. Earlier, a UN delegation conducted a review of the general situation for holding elections and presented its report to the UN.

So the key to start elections and electoral reform is in your hands, the representatives of people in the national assembly, to open the way for holding elections and starting electoral reforms by approving the law on the structure and duties of the electoral commissions, in any way and with any type of amendment and addition that you see necessary. The people of Afghanistan are patiently waiting for you to prepare the ground hold elections as soon as possible, by your wise and rational decision.

The government’s insistence that the elections will be held as planned, however, is in stark contrast to the unlikelihood that this is still even remotely possible. These elections are more complicated than the previous ones given that, for the first time, they are supposed to include district elections with their dizzying array of candidates and seats to compete for, and their untested district electoral boundaries. According to the new law, moreover, voters are now supposed to be registered based on their tazkeras, so that the massively fraud-prone voter cards can be discarded. They will also need to be linked to districts, if not polling centres.

Legally speaking, there are two clear timelines in the Election Law. First, the IEC needs to announce the election date at least 180 days ahead of the election, which it did on 18 January 2016 (see AAN’s dispatch here). Second, the IEC needs to publish its electoral calendar at least 120 days before election day. This means that the electoral calendar needs to be published at the latest on 17 June 2016 – ie next week – to still be able to, legally, plan for October elections (let alone practically). (7)

The IEC, however, is in a state of disarray. Donors cut electoral funding in May 2015 (discussed here), with the understanding that they would probably resume their funding once it seemed likely that the elections would indeed take place (based on realistic planning and meaningful reform). The funding cuts forced the electoral institutions to go into ‘hibernation mode.’ The IEC has, since then, announced the date of the elections and suddenly released the withheld 2014 presidential election results, but has done little else. After the resignation of the IEC Chair on 26 March 2016, the commission appears to have become fully inactive.

An end to the reforms?

With the sending of the decree to the Wolesi Jirga and the repeated insistence that it is now up to the parliament to ‘do its job,’ the government seems to have tried to shift the blame and to divert attention both from the absence of meaningful electoral reform and from the sheer improbability of its insistence that the elections will still be held in a little over four months’ time. But the government’s handling of the decrees seems to signify two things: the prioritisation of rushing through electoral preparations, and the boiling down of technical (and political) reforms to a discussion of who gets to influence the composition of the electoral management bodies.

The national unity government – in effect the Palace, but with little push-back from the CEO (who seems focused on a narrow set of issues surrounding the composition of the IEC, IECC and Selection Committee) – seems to have done the absolute minimum when it comes to electoral reform. There are no indications that the proposed changes will help mitigate the problems that have plagued Afghanistan’s past elections (with the possible exception of the decision to no longer use the current voter cards, but in the absence of concrete plans, this may well remain an aspiration only).

So what will happen now? First of all, it seems unlikely that, if parliament does vote down the Structure Law decree again, the president would send a new one. There have already been hints that the Palace may be looking into ‘alternatives’. This was, for instance, hinted at by a presidential deputy spokesperson Dawa Khan Minapal when he told Mandegar Daily on 6 June 2016, that the president had made it clear in a meeting with the heads of both houses of parliament that, if the decree was not approved, he would, with their consent, provide another legal alternative. This seems to imply that the Palace may, after all, ask the Supreme Court for a ruling.

There have also been vague pronouncements by the government that the further-reaching reforms are not completely off the table, and there have been indications that they may take place after the parliamentary and district elections. According to SERC chair Akefi, the national unity government leadership had “in principle” accepted the SERC’s recommendations to change the electoral system, establish a special electoral court and use technology in the electoral processes (in particular, to replace the current system of voter cards that facilitated mass fraud). But because the implementation of these recommendations before the upcoming elections was logistically and technically impossible, the government “would consider these changes for future elections, after the upcoming elections are held.” However, the commitments to do so are paper-thin.

Implementing the twin demands of fundamental electoral reform and speedy elections, in the context of a unity government that is deeply divided on these issues, was never going to be easy. But the pretence that it is still possible to plan and prepare for an election this year seems unhelpful and counterproductive.

 

(1) The relevant passages in the political agreement can be found under A and E: 

A. Convening of a Loya Jirga to amend the Constitution and considering the proposal to create the post of executive prime minister

  • On the basis of Article 2 of the Joint Statement of 17 Asad 1393 (August 8, 2014) and its attachment (“…convening of a Loya Jirga in two years to consider the post of an executive prime minister”), the President is committed to convoking a Loya Jirga for the purpose of debate on amending the Constitution and creating a post of executive prime minister.
  • After the inauguration ceremony, the President will appoint in consultation with the CEO by executive order a commission to draft an amendment to the Constitution.
  • On the basis of Article 140 of the Constitution, the national unity government is committed to holding 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.
  • The national unity government is committed to ratifying and enforcing a law on the organization of the basic organs of the state and determination of the boundaries and limits of local administration by legal means.
  • The national unity government commits to completing the distribution of electronic/computerized identity cards to all the citizens of the country as quickly as possible.
  • The above issues and other matters that are agreed to will be implemented on a schedule which is appended to this agreement.

E. To ensure that future elections are fully credible, the electoral system (laws and institutions) requires fundamental changes. Immediately after the establishment of the government of national unity, the President will issue a decree to form a special commission for the reform of the electoral system in accordance with Article 7 of the Political Framework. Members of the special commission will be agreed between the President and the CEO. The special commission will report to the CEO on its progress and the Cabinet will review its recommendations and take the necessary steps for their implementation. The objective is to implement electoral reform before the 2015 parliamentary elections.

For the full text of the political agreement see here.

(2) The decrees are both dated 28 February 2016, but they may have been backdated, as the government did not announce their existence until the very last moment (which was on 5 March 2016, the day the Wolesi Jirga had already been scheduled to reconvene). In the days before the announcement, when the decree was already supposed to have been signed, there were still differing views as to their content and implications. On 2 March 2016, for instance, this Mandegar article quoted Vice President Sarwar Danesh on the composition of the Selection Committee, saying that some members would be replaced, while Abdullah’s deputy spokesperson, in the same article, claimed the new members would simply be added to the existing composition (in the end Danesh was right).

(3) Article seventy nine of the constitution states that: During the recess of the House of Representatives, the Government shall, in case of an immediate need, issue legislative decrees, except in matters related to budget and financial affairs. Legislative decrees, after endorsement by the President, shall acquire the force of law. Legislative decrees shall be presented to the National Assembly within thirty days of convening its first session, and if rejected by the National Assembly, they become void.

The executive, under both Karzai and Ghani, has developed a habit of using the parliamentary recess to pass legislative decrees for laws that appear ‘too complicated’ for the normal parliamentary review and voting process. Supporters argue this approach is covered by the ‘immediate need’ phrase in the article.

(4) The recurring confusion over whether the parliament is still allowed to discuss the laws governing the elecions is based on Article 109 of the Constitution, which states that: Proposals to amend the electoral law shall not be included in the agenda of the Assembly during the last year of the legislative term. At different times this has been interpreted to mean different things. One of the interpretations is that the ban covers the Electoral Law, but not the Structure Law (despite the fact that the two laws used to make up the single Election Law, before it was split by parliament; see here). For recent examples of discussions on the meaning of Article 109, see here and here; for examples of a similar confusion in 2010, see here and here.

(5) The earlier Selection Committee, based on presidential decree 85, was made up of Fahim Dashti from the Journalist Federation representing media institutions, Ahmad Zia Langari from the Afghanistan Independent Human Rights Commission, Zarqa Yaftali representing women’s rights defence organizations, Muhammad Naim Ayubzada from TEFA representing election observer organisations, Lotf-ul-Rahman from the Commission for Overseeing Implementation of the Constitution, and Muhammad Nader Hotak from the Independent Administrative and Civil Service Reform Commission. Only Zarqa Yaftali and Naim Ayubzada have retained their seats on the committee. Fahim Dashti, an Abdullah loyalist and one of the two members of the Selection Committee whose position was completely discontinued, claimed that the amendments had been personally targeted and guided by a political hand (he, in particular, pointed the finger at National Security Advisor Hanif Atmar).

(6) It is not clear if Nuristani’s resignation was a result of an agreement between the two camps and their consequent joint pressure, or if it was indeed his own decision, made “for the sake of the stability of Afghanistan” and to ease the “pressures” on the election process, as he maintains. His resignation, and the praise he received from the government (as well as rumours that he was going to be appointed as Ambassador), may well have been an honourable exit offered by the president’s camp as a concession to the CEO, in return for him backing down on more fundamental reforms.

(7) The electoral calendar sets the timelines for candidate nomination and verification, the campaign period and the various complaints processes, and provides estimated dates for the preliminary and final election results. To get an idea what such a calendar would practically look like, it is instructive revisit the 2010 elections (which was less complicated than the upcoming one, as it included only a Wolesi Jirga election, without the district councils vote).

The 2010 Wolesi Jirga election was scheduled for 8 September 2010. Candidate nomination, at the time, took place from 20 April to 5 May 2010. It was concluded over four months before election day – which would be about now, if the same calendar were followed for the upcoming election. Candidate vetting was concluded on 6 July 2010, ie two whole months after candidate nomination ended, in an election with a lot less candidates than the upcoming one will have.

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Thematic Category: Political Landscape