Political Landscape

The President’s CEO Decree: Managing rather than executive powers (now with full translation of the document)


Dr Abdullah and Dr Ghani signing their first bilateral agreement on 8 August 2014.

Dr Abdullah and Dr Ghani signing their first bilateral agreement on 8 August 2014.

It is one of the central documents of the new national unity government, but it has not received much public attention: the presidential decree that lays out the “responsibilities and authorities” of the new Chief Executive Officer and was already issued in December 2014. AAN’s co-director Thomas Ruttig has read the document (find an AAN translation at the bottom of this text) and concludes that it does not go much beyond what has already been laid out in the agreement signed on 21 September 2014 by then presidential contenders Ghani and Abdullah about the national unity government (NUG). The new decree mainly cements the hierarchy between the president and his quasi-prime minister.

The Ghani camp has insisted from the beginning that the president remains in the lead in the new national government (NUG) that has been hatched as a solution for the inconclusive 2014 presidential election. The NUG deal that had to be brokered by US foreign minister John Kerry and was signed on 21 September, made Ghani the head of state and created the new position of a Chief Executive Officer (CEO) of the government “with the functions of an executive prime minister“ but not that title. (Read its full text in the annex to this AAN dispatch.) The main objective of this step was to assuage Abdullah and to prevent an outbreak of violence that had been threatened by some heavyweight supporters of Abdullah by integrating his camp into the new government.

When Abdullah signed the NUG deal – that stipulated that the CEO’s authorities will be defined by the president per decree – and later accepted the CEO job, he gave the president the power to define his new post (one that is not provided for in the constitution). With the 21 September agreement, he also accepted that he would work “under the authority of the President” (our emphasis), as the document says in its preamble.

This presidential decree (farman), issued on 11 December 2014, now specifies these authorities and, by doing so, cements the hierarchy created by the 21 September deal.

Some terminology

The Dari term used for the CEO position, rais-e ejra’iya (head of the executive), sounds much clearer than its English version that was copied from the business world. The addition – “with the functions of an executive prime minister“ – plays to a major political aspiration that Abdullah and his followers had been pushing for starting with the Constitutional Loya Jirga in 2003/04: the re-introduction of the position of prime minister. This position had existed throughout Afghanistan’s constitutional monarchy period (1964-73) and was abolished with the ‘Karzai era’ constitution put into force in early 2004 that, on most other content, was based on the one of 1964. The CEO degree reiterates the commitment of the 21 September agreement that a loya jirga will be held to take a final decision about whether the new position will be made permanent, then officially as “executive prime minister,” or be dropped. In one of its nine articles, it stipulates that:

The execution of the authorities laid out in this farman will be valid for the head of the executive only, until a loya jirga takes the decision about the creation of the position of an Executive Prime Minister, and are not transferable.

According to the constitution, (1) however, it is the president who heads the Afghan executive – although this is not spelled out in unmistakable words. It says that “The President shall be the head of state of the Islamic Republic of Afghanistan, executing his authorities in the executive, legislative and judiciary fields in accordance with the provisions of this Constitution. (Art. 60); he has the authority to “appoint the Ministers” (wuzara) (Art. 64); moreover, the ministers, of which “the government shall be comprised,” “work under the Chairmanship of the President” (Art. 71).

The constitution also does not define what form the “the government” (hukumat) takes: it mentions individual ministers (wuzara) but avoids the terms “cabinet” (kabina) and “council of minister” (shura-ye waziran). Both terms, however, have been used, and as synonyms, over the past almost four decades – first by the PDPA governments from 1978 onwards, but also by the Taleban and President Karzai. This somewhat blurred terminology creates the legal space that allowed the new CEO position to fit into the current political set-up.

To allow for the sharing of executive powers, without actually relinquishing them, the CEO decree therefore starts with “the establishment of the Council of Ministers as a separate body from the cabinet”, which will be chaired by the CEO. This body had already been mentioned in the 21 September agreement, as consisting of “the CEO, Deputy CEOs, and all ministers.“ The new decree adds the heads of two politically relatively marginal directorates that traditionally had cabinet rank, the National Environment Protection Agency (NEPA) and director of the Central Statistics Office (CSO).

The 21 September 2014 agreement already stipulated that the president “as head of state and government” would lead the cabinet:

The Cabinet consists of the President, Vice-Presidents, CEO, Deputy CEOs, the Chief Advisor and ministers.

Some blurriness remains, as the heads of other, more important institutions – like the intelligence service, the NDS, and the Central Bank – have been included in the ‘cabinet list’ submitted to parliament for their individual votes of confidence (see our reporting here) but do not seem to be included in the Council of Ministers, so remain under the direct supervision of the president only. On the other hand, the CEO is guaranteed input into general decision-making, as he and both his deputies not only sit in the cabinet but also in the National Security Council.

Duplication of structures or creating a hierarchy?

At first glance, it looks as if the CEO decree creates a lot of duplication (and even confusion) in lines of responsibilities and reporting. That might well be the case, but the 21 September agreement had already made it clear that all reporting lines end at the president’s desk who, by delegating “specific executive authorities to the CEO” (our emphasis), remains the ultimate authority.

This is reiterated in the 11 December decree. Article 7 of the decree, for instance, clearly spells out that the CEO is “accountable” to the president on all tasks assigned to him by the cabinet and will report to the cabinet. The 20 specific tasks delegated to the CEO (again, most of them are already in the 21 September agreement) include “hearing reports from ministers on the decisions taken by the cabinet” and “evaluating the ministers’ work reports on the matters assigned to them by the cabinet and reporting the results [back] to the cabinet” with its chair, the president (our emphasis). Moreover, some of the more difficult tasks facing the executive as a whole are outsourced to the CEO and the Council of Ministers chaired by him. Those tasks include:

– implementing the reform progammes approved by the cabinet;

– ensuring the implementation of government policies on balanced development [of the provinces?];

– ensuring that the ministries’ budgets are spent punctually and rationally;

– maintaining steady relations with the different strata of society, in order to bring their problems into the CoM’s [Council of Ministers] deliberations

and even

– ensuring that the plans for official trips of senior government officials are implemented effectively and rationally.

With those tasks surely goes the responsibility for their successful implementation – or lack thereof. Neither the 21 September agreement nor this decree, however, contain a stipulation what happens in the latter case, ie whether the CEO can be dismissed if not up to his tasks. (Even the president can be dismissed, by impeachment by parliament.)

On the administrative and financial sides, the decree makes the structures under the CEO – the office of his Chief of Staff and the Council of Ministers’ secretariat – look rather self-sufficient, as decisions about their appointments, budgets and expenditures are in his hands. (Abdullah and both his deputies, Mohaqqeq and Muhammad Khan, have already appointed a number of advisors.) But, as the whole budget, this is dependent on the approval of parliament. The Wolesi Jirga , while passing the budget for the current fiscal year (starting on 21 December 2014) in its last session before the winter recess on 28 January 2015, put a hold on the CEO’s budget – demanding that the establishment of the CEO office’s tashkil as a new budget line be approved first.

Whatever the outcome of this additional complication, the 11 December decree with the now defined “authorities and responsibilities” rather puts the emphasis on the latter. It makes the CEO more a managing director of the Afghan executive than an actor with executive powers. Those remain in the realm of the president. The latter stays in full control that is only under a moral caveat, as both are – as the 21 September puts it – “honour bound” to work with each other in a “spirit of partnership.” But there is also no legal guarantee that the president cannot overrule the CEO if he deems it necessary.

What comes next?

The matter of how power is shared between the president and CEO connects to a larger struggle about the shape of the Afghan political system and possible changes, away from the current set-up dominated by the president to a (more) parliamentary system. The decision whether to make the CEO permanent, in the form of an official “executive prime minister” also bearing that name, as a power centre separate from that of the president, or not, will signify which way the trend will go. This decision Ghani and Abdullah have left to the discretion of a loya jirga that, according to the 21 September agreement, has to be convened within two years after the establishment of the NUG.

This brings us back to a familiar issue, the legitimacy of past loya jirgas convened by ex-President Hamed Karzai – like the “consultative” one about the bilateral security agreement with the US in November 2013, the “traditional” one in November 2011 about the same issue and the 2010 “Peace Jirga.” The constitution stipulates that representatives of elected district councils have to be delegates of any loya jirga. This has not been the case in 2010, 2011 and 2013, as district council elections have never been held. (The CEO degree – in contrast to what some circulating “working translations” say – does not use the term ‘constitutional loya jirga’.) The stop-gap solution – to temporarily fill their places by additional representatives from the next higher available level, the provincial councils – has run out of much of its initial acceptance, particularly among those who have accused the former president of manipulating the above-mentioned loya jirgas by handpicking delegates and ‘managing’ discussions. (Find details here and an analysis of the different forms of loya jirgas here.)

Therefore, Ghani and Abdullah also committed themselves in the 21 September deal (reiterated in Ghani’s inauguration speech) to hold district council elections “as early as possible.“ This could be done, as chairman of the Independent Election Commission Yusef Nuristani suggested last month, simultaneously with the next parliamentary polls which, according to the constitution, must take place not later than before 23 May this year. (His counterpart at the Independent Election Complaints Commission, however, concluded after last year’s polls that the idea of simultaneous elections had flopped.)

But although people in the Ghani camp still insist that the elections will be held on time, there seems to be a general agreement that this is highly unlikely, particularly as both camps (and more so that of Abdullah) insist on electoral reform before elections. (More on the elections discussion from AAN in the coming days.)

If the parliamentary elections are indeed postponed (and with them very likely those for the district councils) – and there is no reason to believe this will not happen – they will not be held before autumn 2015 or even only by spring 2016. Even if those elections do not run into the same problems as last year’s, namely conflict about the results and a lengthy process of adjustments, Afghanistan will face another set of fiercely contested elections that will deny the government the time to tackle its reform agenda – or indeed anything else. For the time being, the tug-of-war about what the power-sharing provisions in the National Unity Government mean mean will make governing Afghanistan more cumbersome.

As the Ghani camp also includes political forces that support the re-introduction of a prime minister, including parts of Jamiat led by Ahmad Zia Massud (now the president’s High Representative for Reform and Good Governance) and the Jombesh party, it will be interesting to see, when it happens, which way the loya jirga will swing.

 

(1) We use the text of the constitution published in the Official Gazette 818, published on 28 January 2003 (on the internet here) and of the decree as published on social media (showing the official number 35, stamp and signature of the president).

 

ANNEX – AAN translation of the decree

 

No 35

22/09/1393 [11 December 2014]

Decree

President of the Islamic Republic of Afghanistan

Concerning the Establishment of the Council of Ministers, the Responsibilities and 
Authorities of the Chief Executive Officer of the National Unity Government of the Islamic Republic of Afghanistan

Pursuant to articles 5, 50, and 142 of the Constitution, and considering Articles 60, 64, and 71 of the Constitution, and the thirteen Sub-Articles of Article B of the agreement between the two electoral teams on the structure of government of national unity, I hereby approve the establishment of the Council of Ministers as a separate body from the Cabinet, as follows:

The Composition of the Council of Ministers:

Article 1: The Council of Ministers will be comprised of the Chief Executive Officer and his deputies, the ministers, and the directors of the National Environmental Protection Agency and Central Statistics Organization

The Chief Executive Officer’ duties and responsibilities:

Article 2: The Chief Executive Officer of the National Unity Government, with the duties of an executive prime minister, undertakes the administrative and executive responsibilities of the government as indicated below.

  1. Convening Council of Ministers’ meetings
  2. Taking reports from ministers based on decisions taken by the Cabinet, the executive decisions of the Council of Ministers and any other designated task
  3. Following up resolutions made by the Cabinet and decisions by the Council of Ministers
  4. Providing advice to the President on the carrying out of the main policy lines of the country
  5. Ensuring the implementation of government policies on balanced development;
  6. Ensuring that the ministries’ budgets are spent punctually and rationally
  7. Providing suggestions and advice to the President on appointments and discharging of senior government officials and other government-related matters
  8. Participating in bilateral decision-making meetings with the President
  9. Providing advice and suggestions to the President on good governance
  10. Proposing reform plans for fighting corruption, reform and good governance to meetings of the Cabinet
  11. The timely receiving and analysing of information on matters (social, economic and governance matters) in order to specify the plans and prioritize the agenda of the Council of Ministers and provide advice to the President
  12. Presenting the annual report of the Council of Ministers’ activities to the Cabinet
  13. Maintaining steady relations with the different strata of society in order to bring their problems into Council of Ministers’ deliberations
  14. Taking part in national events in order to show the solidarity of the National Unity Government
  15. Representing the National Unity Government at national and international levels based on the President’s instruction
  16. Maintaining the working relations of the executive branch with the legislative and judicial branches in the defined framework of duties and responsibilities
  17. Evaluating the ministers’ reports on the matters assigned by the Cabinet to the Council of Ministers and reporting actions taken to the Cabinet
  18. Implementing the reform programmes approved by the Cabinet;
  19. Ensuring that the plans for official trips of senior government officials are implemented effectively and rationally
  20. Undertaking others’ duties that the President, within the constitution framework, has transferred to the Chief Executive Officer

Chief Executive Officer Authorities

Article 3: The Chief Executive Officer of the National Unity Government has the following authorities:

A Administrative:

  1. Chairing the Council of Ministers meetings
  2. Being a member of the Cabinet and National Security Council
  3. Ensuring the executive inter-ministerial coordination for the implementation of projects
  4. Establishing and leading Council of Ministers’ sub-committees
  5. Endorsing Council of Ministers’ work-plans and presenting implementation reports to the Cabinet
  6. Leading and administering the Office  of the Chief Executive Officer’s Chief of Staff and the Secretariat of the Council of Ministers, as an independent budgetary entity
  7. Appointing and dismissing the staff of the Office of the Chief Executive Officer and the Secretariat of the Council of Ministers, based on the prevailing law and the regulations of the country
  8. Joining the President during all ceremonial and official events of the state of the Islamic Republic of Afghanistan
  9. Proposing ministerial nominees to the President
  10. Receiving working reports from the ministries and adopting necessary reforms in their work based on the law

B Finances:

  1. Approving the formation and budget of the Office of the Chief Executive Officer’s Chief of Staff and the Secretariat of the Council of Ministers as an independent budgetary entity
  2. Approving expenditures of the Office of the Chief Executive Officer’s Chief of Staff and the Secretariat of the Council of Ministers
  3. Approving the use of up to 30 per cent of the money from Code 91 (Policy)
  4. [Exercising] any other financial authority that, within the limits of the Chief Executive Officer’s duties, has been designated by the President of the Islamic Republic of Afghanistan to the Chief Executive Officer of the National Unity Government

Duties and Responsibilities of the Chief Executive Officer’s deputies:

Article 4: The Deputies of the Chief Executive Officer will extend their support to the Chief Executive Officer in order that he can carry out all the duties and responsibilities designated to him as mentioned in this decree

Article 5: The Deputies of the Chief Executive Officer are members of the Cabinet and the National Security Council

Article 6:  The division of duties between the Deputies or the Chief Executive Officer will be based on the Chief Executive Officer’s preference

Accountability:

Article 7: The Chief Executive Officer is accountable to the President on all tasks assigned to him by the Cabinet and will report to the Cabinet

Article 8: The execution of the authorities laid out in this decree will be valid for the Chief Executive Officer only until a loya jirga has taken a decision about the creation of the position of an Executive Prime Minister, and are not transferable.

Working Duration:

Article 9: The Chief Executive Officer and his deputies will continue to enjoy their responsibilities and authorities until the Constitution is amended and the Executive Prime Minister post is created

I pray to God for the success of the Chief Executive Officer of the government of national unity in serving the people of Afghanistan

 

Muhammad Ashraf Ghani

President of the Islamic Republic of Afghanistan

Tagged with: , , , , ,
Thematic Category: Political Landscape