The IEC proposal to move to a mixed electoral system
Afghanistanâ€™s IEC has proposed sweeping changes for a new electoral law. The draft has already been publicly debated with stakeholders, including parties and civil society, and is publicly accessible. We see two major points of proposed changes: first, the partial move away from the SNTV system and a bigger role for political parties in parliamentary elections; secondly, the new provisions and institutions for election monitoring and the handling of complaints. Although it can be expected that the draft will pass the upcoming legislative process unchanged, AAN Senior Analyst Thomas Ruttig thinks it is worth having a first look at it. With input by S. Reza Kazemi, he concentrates on the proposed changes in the electoral system and the role of the political parties.
As part of the efforts at overdue electoral reform, Afghanistanâ€™s Independent Election Commission (IEC) has drafted a new electoral law (the draft, in Dari, can be foundÂ here). On 19 June the commission announced that it has sent the draft to the Ministry of Justice (MoJ). The ministry had requested the review of the currently existing law, after a parliamentary initiative to reform the law had petered out with theÂ changes at the Wolesi Jirgaâ€™s top. The draft now has to go through the proper process to become legislation: first, the MoJâ€™s legislation (taqnin) department will scrutinise it to make sure that it is compatible with other existing laws, then it will be sent to the Council of Ministersâ€™Â taqninÂ committee, and from there to parliament where it has to pass both houses. Finally it needs the signature of the president. The law may still be changed at every step of the way.
The IEC underlines inÂ its statementÂ that it has taken â€˜into account the Constitution, lessons learned from [the] 2009 and 2010 elections, imperfections [sic] in the previous electoral laws, accepted international electoral standards, conditions, resources and values of the society and also recommendations of various stakeholders including the national and international observation groupsâ€™ (see for instance Democracy Internationalâ€™s 2010 compilation ofÂ â€˜consensus recommendations for electoral reformâ€™). Furthermore, it says that â€˜the electoral stakeholders including political parties, electoral observer organizations, civil society, academic and scientific institutions and other organizations involved in the electoral processâ€™ as well as media [and] the international community had been consulted in meetings held â€˜on the regional level in Kabul, Balkh, Kunduz, Bamian, Nangrahar and Paktia provincesâ€™ (the south and west are absent here). The outcomes are, as the IEC says, proposals for â€˜structural and procedural changesâ€™ focusing on four main areas: the authorities of the IEC; technical and operational changes to improve the electoral administration; changes in the electoral system and the establishment of a new â€˜legal and effective mechanism to adjudicate electoral complaints and challengesâ€™.
The fact that the draft has been made public is a welcome step to greater transparency in the electoral reform process and provides analysts with the opportunity to have a first look at it. In its boldest step, the IEC draft gives a formal role to political parties in the parliamentary elections by replacing the much-criticised multi-seat-constituency SNTV system(1) used so far with a mixed system. It does not propose to change that the provinces are also the electoral constituencies what leads to multi-seat constituencies with different numbers of seats, according to the respective provinceâ€™s population – between 33 (Kabul) and only two (Nimruz, Nuristan, Panjshir).
In the proposed system, after the ten seats for theÂ kuchisÂ (nomads) are subtracted (no change in this), one third of the remaining 239 Wolesi Jirga (lower house) seats is allocated to political parties under a list system, while the remaining two thirds continue to be distributed among individual candidates on the basis of SNTV(2). According to art. 22, the number of seats for the party lists will be determined at the provincial and not the national level, which appears to increase the chances of those parties who have a strong regional but no country-wide basis. It, however, also makes the system considerably complicated. It appears that the partial switch to a mixed system gives two votes to each Afghan voter in the coming parliamentary elections, somewhat similar to the system used in Germany(3) and in some Central Asian republics. Art. 17, Para 4 however seems to exclude that candidates running for an individual seat can be included in party list as, for example, Germany does allow: â€˜No person can put forward his/her in more than one electoral constituency or for more than one seat at the same time.â€™
Afghanistanâ€™s political parties have been advocating for a mixed system since before the first parliamentary elections of 2005. In a seminar organised by the Ministry for Information and Culture in March 2005 and attended by most of the around 50 parties that were registered at the time, all except two(4) spoke in favour of proportional representation and a party list system. Later, in order to accommodate the SNTV supporters in the executive, most of them settled for the compromise of a mixed system. But this demand was not heeded. The same happened well before the parliamentary elections of 2010, when in March 2008, dozens of parties (mujahedin, pro-democratic and leftist)(5)Â demonstrated outside parliamentÂ to demand modifications in the electoral system again. This time they wished to distribute 60 per cent of the Wolesi Jirga seats on the basis of proportional representation and party lists and 40 per cent on the basis of a â€˜majority voteâ€™ (SNTV), in order â€˜to uphold democratic norms and minimise the number of invalid ballots in electionsâ€™. Again, this did not have any effect. In April this year, the IEC consulted the political parties again and reported that all 41 of them that were registered at that point(6) had participated in this meeting.
The draft law has a number of unusual provisions in the parts that refer to political parties. Art 23, Para 6 establishes that if the votes for those parties do not reach four per cent in a given province they will not be counted for the distribution of seats. The reason for this is not immediately clear but it appears that this does not amount to a four per cent hurdle that is applied nationwide (similar to the 5 per cent hurdle in Germany or the 10 per cent hurdle in Turkey).
Art 23, Para 1 compels political parties to compete for every seat available in a province, by demanding that they â€˜provide the Commission with their list of candidates, [and that] the number of candidates shall be twice the number of party seats allocated in the related constituencyâ€™. This precludes smaller parties, for example, from fielding one candidate. Art 23, Para 2 says that, in case of death or resignation of an elected political party candidate, â€˜the Commission shall, in accordance with the provision of the law, select another person from the candidatesâ€™ list of the same partyâ€™ to replace her or him.
Apart from these more technical aspects, there are more fundamental problems with the law. First of all, the mixed system â€“ with whatever percentage of list and SNTV seats â€“ makes the voting even more complicated than it already was, on two levels. First, giving two votes to each voter might confuse many of them, particularly the illiterate who already had difficulties understanding the difference between presidential and parliamentary elections in 2005 and 2010. It is also true that Afghan voters should not be underestimated â€“ a similarly complicated system was successfully used in the Hazarajat for the 2002 Emergency Loya Jirga elections â€“ but it will be key to explain the system properly â€“ and this tends to be easier in small constituencies.
Secondly, a seat distribution that is widely perceived as fair will become more difficult in a mixed system, given that the allocated number of seats per provinces will have to accommodate both a quota for political parties and for women. This will be particularly difficult in provinces with a small number of seats. Art 6, para 2, does provides the option to change the seat allocation per province, but will be contentious in itself(7). How the women seats will be distributed between the individual candidatesâ€™ and the party seats has not been specified in the draft. The failure so far to delineate the districts boundaries stands in the way to overcoming at least the extremely difficult multi-seat constituency issue.
Thirdly, parts of the proposed reformed law may well still fall through in the end, particularly those sections that strengthen the role of political parties. After all, the current parliament has been elected on a non-party basis. Why should MPs change a system that has made them successful? The Wolesi Jirga, with its already cluttered agenda, its notorious lack of quorum and its strained relationship with the executive and judiciary, can also simply choose to drag the issue on till it is too late. The electoral law cannot be changed in the last year of its legislative period, i.e. from after the summer break in 2014 (provided the parliamentary elections are held as scheduled in 2015). This sounds like enough time, but electoral law reform was already side-tracked twice before, before 2005 and before 2010.
The highest hurdle, though, can turn out to be the executive itself. The Presidentâ€™s antipathy towards political parties is well known, and there is no indication that this has changed(8). According to an AAN interlocutor whose organisation works on the subject and who does not want to be quoted with his name, â€˜nobody wants to take the President onâ€™ on the draft electoral law so far, fearing that he might shoot down any suggestion to strengthen the role of political parties. Thatâ€™s where the desire of some political parties and civil society activists to have the international community involved in the matter comes from.
Last but not least: It might be simply too late to elevate the role of political parties in a way that strengthens Afghanistanâ€™s â€˜young democracyâ€™ (Foreign Minister Zalmay Rassul in Rio). The playing field has been all but level over the past ten years, favouring those who are in positions of power, have access to resources and are able to remobilize fighters.
This has favoured mainly theÂ tanzimsÂ and a few other parties. The new pro-democratic parties that came out of the underground in late 2001 or were newly established never made it out of marginalization. They will probably hardly have a chance to get out of the margins of the political process even if te law were reformed. They are starved of resources, that were alrealy limited to start with and many have had to close down most of their infrastructure (most now barely have any offices outside Kabul and almost no media outlets). This is of course compounded by their own weaknesses, their lack of experience of working under legal circumstances, their inability to come up with an attractive agenda and to unite their disparate forces, their fear to be labelled as un-Islamic and persecuted (many were former leftists; see also the currentÂ case of the Solidarity Party). But also the lack of attention and the limited support by the international community that for too long was fascinated by the person of Hamed Karzai, and him alone, has closed off much of the room to manoeuvre in the political centre, between the Presidentâ€™s camp, the tanzims and the Taleban.
As a result, the changes proposed by the IEC look like a step towards democratisation on paper, but might simply cement the existing power structures â€“ unless particular attention and (moral) support is given to new, â€˜centristâ€™ forces that are not part of the polarisation between the Karzai camp andÂ the â€˜oppositionâ€™Â tanzims. This would include encouraging and supporting the IEC to set up a workable and effective mechanism to prevent illegal party financing (as the law already precludes) but from which most tanzims are believed to benefit still. It is of concern, therefore, that the IEC draft drops the provision of art. 15, para 3 of the existing law that precludes candidates â€˜who practically command or are members of unofficial military forces or armed groupsâ€™ for a much softer wording: that candidates who possess â€˜illegal armsâ€™ and have link with â€˜terrorist groups, organised crime and intelligence agencies of foreign countriesâ€™ cannot run in elections.
A more proactive stance from international actors towards the justified demands of serious political parties may still strengthen political pluralism and what President KarzaiÂ in his Chicago speechÂ called a â€˜vibrant democracyâ€™. It would also contribute to the much-needed post-2014 stability.
(1) Under the Single Non-Transferable Vote system, each voter casts one vote for a candidate but there is more than one seat to be filled in each electoral district. The candidates with the highest vote totals fill these positions (seeÂ IDEA handbook). There are no lists of parties or otherwise. According to the Democracy International paper already quoted, SNTV â€˜impedes the development of political parties in Afghanistan and prevents fair and accurate representation of Afghanistanâ€™s diverse populationâ€™. Also see an earlier blog on this issueÂ here.
(2) In an earlier draft, a distribution of 40 per cent for party lists and 60 per cent for individual candidates was proposed.
(3) That this is not without problems is illustrated in Germany where the Constitutional Court is making up its mind on how to deal with the so-calledÃœberhangmandateÂ (â€˜overhang seatsâ€™). Such additional seats are proportionally added to the German Bundestag in order to preserve a fair distribution when one party gains more seats through its direct candidates than the proportional vote allows. Although , it can be hardly expected that one party in Afghanistan would sweep the votes in a similar way, with the high number of parties potentially competing, but it can also not be fully ruled out. A more specific problem under Afghan circumstances might arise from the fact that, during earlier elections, many candidates known as members of or close to political parties, preferred to run as â€˜independentsâ€™ anyway. It may not be clear how to count them.
(4)Â Hezb-e Wahdat-e IslamiÂ (Khalili) andÂ Jabha-ye Nejat-e MelliÂ (Mojaddedi, engl acronym ANLF). The author attended the seminar as an observer.
(5) For the different ideological and historical strands of Afghanistanâ€™s political party system seeÂ my 2006 paperÂ â€˜Islamists, leftists â€“ and a void in the centre: Afghanistan’s Political Parties and where they come fromâ€™.
(7) The quota system for women stipulates that there have to be â€˜at leastâ€™ two seats per province â€˜on averageâ€™. In 2005 and 2010, the â€˜at least two women seatsâ€™ rule had to be modified for those provinces with 3 or less seats after male politicians argued that the rights of men would be violated. Interestingly, in 2010 Nimruz elected women for both its seats anyway.
(8) TheÂ Rights and Justice Party, in its own paper on electoral reform published in May 2012 (hard copy with AAN) criticises what it calls the â€˜anti-political party attitude and propaganda of the state leadershipâ€™.