Author: Ali Yawar Adili and Martine van Bijlert
Afghanistan’s electoral reform process, a major part of the National Unity Government’s programme, has been slow and painful with its high stakes and divided government positions. But over the last few months two significant hurdles have been taken: the new electoral law has finally been passed, and the new electoral commissions have been appointed. Although the commissions are ready to start planning the country’s overdue parliamentary and district council elections, the problems that have long held back the electoral process are far from resolved. In particular, the questions of what electoral system to employ and how to organise voting have now been passed on to the IEC to grapple with. AAN’s Martine van Bijlert and Ali Yawar Adili answer key questions on where we are now.
Why has Afghanistan’s electoral process been so complicated?
Afghanistan’s post-Taleban electoral process has been vulnerable from the very beginning: from fraud during the election itself, to manipulation in its aftermath when trying to settle on the winners, to power games that seek to shape the electoral infrastructure in the run-up to the elections. It was precisely this inability to arrive at an unambiguous outcome in the 2014 presidential elections that resulted in the current, somewhat combustible National Unity Government (NUG) made up of President Ashraf Ghani and the newly established position of Chief Executive, Dr Abdullah Abdullah. As part of the political agreement (full text here), the two sides agreed to fundamental electoral reform ahead of the next elections – planned for 2015, but yet to take place – despite reluctance on the part of the presidential camp.
The demands for electoral reform from the Abdullah camp largely focused on the complete overhaul of the electoral bodies – the Independent Election Commission (IEC) and the Electoral Complaints Commission (ECC) – which they accused of having overseen widespread fraud in favour of the president in the 2014 elections, and the replacement of the current, unusual electoral system (SNTV, or the Single Non-Transferrable Vote; background here). Both demands required amendment of the electoral laws, but there were legal complications, as, according to article 109 of the constitution, the parliament was not allowed to “include proposals to amend the electoral law in its agenda” during the last year of its legislative term (the parliament’s term constitutionally expired on 22 June 2015, but was extended by presidential decree). This legal ambiguity prolonged the debates and confused the matter as to who, the government or the parliament, would have the last word.
The process was further complicated by high stakes. The laws determine the electoral playing field, while the electoral bodies decide how and how rigorously rules are applied to deal with the many allegations of fraud, which in turn means that they ultimately get to decide which candidates win. And the outcome of the upcoming elections – parliamentary and, if the political agreement is implemented, also district council elections – matters a lot. Both camps in government, as well as other political groupings, will want to have strong support in parliament. A strong showing in the Wolesi Jirga makes it easier to secure senior appointments (MPs get to directly vote on cabinet-level appointments, but are also highly influential in securing other appointments, often by putting pressure on the ministers) and to shape and pass legislation. But the NUG agreement also involves the calling of a Loya Jirga to discuss a possible change in the country’s political system. The majority (86 per cent) of the voting delegates will be, directly or indirectly, determined in the upcoming parliamentary and district council elections. (1)
While the technical expertise within the electoral bodies has grown over the years, the political and security conditions under which the elections need to be organised have only deteriorated. It is thus difficult to envisage the elections taking place, in particular the district council elections, which have been skipped in every electoral round so far (even though the government and the IEC in the run-up to several of the previous elections had, implausibly, insisted that they would indeed take place). Since then, security conditions – which had earlier stood in the way of organising countrywide district council elections – have only deteriorated.
So where are we with the electoral reform process?
The main deadlocks, for the moment, have been broken. In September 2016 the government finally managed to pass a new electoral law, and, in November 2016, the president appointed and inaugurated a new IEC and ECC (see the annex for the commissioners’ short profiles). This means that Afghanistan finally has the necessary electoral management bodies in place, accepted by both camps in the government, to start planning the overdue parliamentary and district council elections. (2)
However, the main controversies remain. The passing of the new electoral law was surrounded by legal disagreement and ambiguity over what was exactly decided. The main controversies have, as a result, been left unresolved and will need to be revisited, by the IEC, in the near future. This includes decisions with regard to a possible change in the electoral system and the practicalities surrounding the introduction of a new voter registry based on ID cards that link voters to polling centres (see below for details). This will lead to new rounds of wrangling as the actual decision-making and implementation approaches, further disrupting and delaying the electoral process.
What were the controversies around the new electoral law?
The first controversy, which has not been fully resolved, relates to how the new law was adopted: by the cabinet instead of by parliament. The government had failed to get parliamentary approval for two earlier legislative decrees, in December 2015 and June 2016 (see previous AAN reporting here and here, and it was unclear whether the second decree was still pending in parliament. So, on 21 July 2016, the president requested a legal opinion from the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC) (see previous AAN reporting here) on how to proceed.
In its answer, on 3 August 2016, the ICOIC ruled on several issues at once. (3) First, there was the question of whether an earlier legislative decree that had been sent to parliament was still pending (after it had been rejected by the Wolesi Jirga, but approved by the Meshrano Jirga). The ICOIC ruled that it should be rejected, although not all members of the committee agreed. (4) In fact, the ICOIC argued that the government should not have sent the decree to parliament at all. This was a break with the parliament’s interpretation of the constitution which held that the ban on discussing and voting on the Electoral Law did not extend to the Law on the Structures, Authorities and Duties of the Electoral Bodies. (5) The ICOIC concluded that the government could issue any decree regarding the elections and the electoral commissions during the parliamentary recess, and that there was no need to submit the decree to parliament later.
The Wolesi Jirga obviously disagreed and summoned the members of the ICOIC to the house’s plenary session on 24 September 2016. The ICOIC, however, refused to appear and sent a letter saying the Wolesi Jirga did not have the right to question them. This infuriated the MPs even more and some of them threatened to remove the ICOIC from the 2017 budget and to abolish the commission. Since then the Wolesi Jirga has taken no further action, although the issue was discussed again in the session of 23 November 2016. The issue may well resurface again in the future.
The second controversy relates to the heated debates around the possibility of changing Afghanistan’s electoral system. When it became clear that no consensus would be reached before the end of the parliamentary recess – which was the deadline before which the decree needed to be adopted – the cabinet, on 22 August 2016, decided to adopt the law “in principle” while leaving open its most controversial change: the proposal to shift to a system of single-member constituencies for both the parliamentary and provincial council elections. Second Vice-President Muhammad Sarwar Danesh was tasked to “rectify and finalise” the law. Two days later, Danesh issued a statement saying that: “The final text [of the law] is not yet finalised and is not ready to be endorsed. The reason for the delay is that a final agreement has not been reached about important issues, including the electoral constituencies.”
Danesh was the first person in government to bring the argument out into the open, implicitly opposing the single-member constituency by saying he thought “it would face many legal and technical, as well as practical and implementable obstacles and challenges under Afghanistan’s current circumstance.”
When the Special Electoral Reform Commission (SERC), the main vehicle that had been driving the electoral reform process, had discussed possible new systems, the single-member constituency (and, by extension, a system of first-past-the-post voting) had been tabled as one of the possible options, but it had not been part of the SERC’s final recommendations (details here). In fact, the proposed introduction of a parallel system (mixing the current SNTV with partial proportional representation) was the reason two members of the commission, who were generally seen as being on the president’s side, announced they would further boycott the SERC meetings. Later, the SERC recommended a multi-dimensional representation (MDR) system, with multi-member constituencies (possibly smaller than provinces), as another possible alternative to the existing SNTV, while the two boycotting members separately presented their proposal for a first-past-the post (FPTP), single-member constituency to the government. Neither option had been incorporated into the two previous decrees.
On 26 August 2016, the second deputy to the Chief Executive, Muhammad Muhaqeq, also voiced his opposition to the single-member constituency, saying, “The central statistics office does not have the capacity to demarcate [the constituencies] village by village and a huge dispute will start among the people as to which village should go with which district, and which one is small and which one is big. In this conflictual situation, it will just add another dispute.” Naim Ayubzada, the director of the Transparent Election Foundation of Afghanistan (TEFA), one of a number of Afghan election observation organisations, summarised the concerns: “The population [data] is unknown, the district and village boundaries have not been delineated yet, and local strongmen are dominant. How will it be possible to ensure electoral justice?”
The inability to reach an agreement within the government and to practically respond to these concerns finally compelled the government to pass the problem on to the IEC, by tasking them to “determine the Wolesi Jirga and provincial councils electoral constituencies, and divide them into smaller constituencies” (art 35.2 of the new law). The decree that endorsed the new law further instructed the IEC to conduct a technical study within three months of its establishment on the “better implementation” of article 35.
The deferring of the decision enabled the new law to be endorsed by decree and to be published in the official gazette on 25 September 2016. But this was not exempt from criticism either. For instance, on 18 September 2016, Abdullah Shafai, a member of the ICOIC, argued that this article was unconstitutional, as according to the constitution (article 83) the electoral constituencies should be determined in the election law, and not by the IEC. He also warned that entrusting this authority to the IEC would transfer the dispute and controversy to the body that should conduct the elections: “This will turn this executive body into a political _buzkashi_ [a local sport; literarily goat-grabbing] field, even more than before, which is very dangerous.”
What are the other main changes to the electoral law? What is the likelihood that the law will change again?
The National Unity Government, first of all, has combined two electoral laws (the Electoral Law and the Law on Structure, Duties and Authorities of the Electoral Commissions) back into one electoral law, which is the way it used to be. This has no bearing on the substance, but it facilitated the government’s move to bypass parliament based on article 109 of the constitution (even though after the ICIOC’s ruling this was, strictly speaking, no longer necessary).
In terms of substance, the new electoral law introduces several major changes, including a new voter registry and, as discussed above, the instruction to look into the size of the electoral constituencies. The new voter registration, according to the new law (6) is to be a based on a voters’ list that ties individual voters to specific polling centres. This is a departure from the previous practice in which voters could simply turn up at any polling centre in the province for which they had a voter card.
The aim is obviously to mitigate fraud in the face of massive over-registration in the past, but it is unclear whether the Cabinet has thought through the practicalities. These include questions such as how to prevent the same kind of over-registration from occurring again (particularly in the continued absence of credible population data), how to determine the list of polling centres in advance of the registration process, and how to maintain those lists in the face of a fluid security situation and a highly mobile population. The cabinet may still be hoping to combine the voter registration process with the planned distribution of electronic ID cards (e-tazkera), but given the political and technical complexities of that process, this is unlikely to be of much help any time in the near future.
Other changes in the law include the deployment of schoolteachers, lecturers of higher education institutes and employees of government agencies as temporary election staff; the introduction of 20 acts that are now considered electoral crimes, with punishments stretching to three years’ imprisonment; adjustments to the composition of the Selection Committee as well as to the composition and structure of the IEC and the ECC, including that the secretariats now report to the commissioners. The new law also adds a (combined) reserved seat for the Hindu and Sikh communities in the Wolesi Jirga (who, because of their small numbers, would not be able to pass the threshold for a seat), bringing the total number of seats to 250; and stipulates that at least 25 per cent of all seats in the provincial, district and village council elections should be reserved for women. (A more exhaustive review of the new law is forthcoming in a separate dispatch).
How did the selection of the new IEC and ECC members go? Were there any controversies and will this affect their work?
The mechanism for the selection of the IEC and the ECC is a Selection Committee. The Selection Committee was first put in place in 2013 based on recommendations from civil society organisations and political parties (see previous AAN reporting here. Since then, the body has been enshrined in the electoral law with the responsibility to vet and shortlist applicants for membership of the IEC and ECC. The composition of the SC has changed every time the law was amended, often in an effort to increase or dilute the influence of certain institutions, factions or individuals (see previous AAN reporting here). The new Selection Committee, comprised of five members, set to work on 28 September 2016. (7)
The composition of the committee was, as usual, carefully scrutinized. There was, in particular, criticism that the representative who had previously been elected and introduced by the civil society organisations had been replaced. Fazl Ahmad Manawi, former chairman of the IEC during the 2010 parliamentary elections and a close adviser to Abdullah, accused circles around the president of interfering in the formation of the committee. This was echoed by several electoral observation organisations. Both the Transparent Election Foundation of Afghanistan (TEFA) and Election and Transparency Watch of Afghanistan (ETWA) complained that the election of the civil society representative had taken place when several prominent civil society members had travelled to Brussels for the October 2016 Afghanistan conference. ETWA said that this had given “some elements” the opportunity “to take control of the electoral reform [by] changing the model [composition] of the selection committee through the amendment of the new electoral law.” Yusuf Rashid, the Selection Committee spokesman and civil society representative who was elected, maintained however that he had been chosen in a competitive process and that his contenders had included TEFA’s candidate, Sughra Sadat. (This specific seat on the Selection Committee has always been the most hotly contested. In an earlier iteration of the committee, the seat was left vacant as a result of disagreements between the different ‘factions’ within civil society, see also previous AAN reporting here)
The election observer organisations also questioned the independence and transparency of the committee’s work. TEFA took issue with the fact that the Office of Administrative Affairs of the President had run the committee’s secretariat and that the committee was located within the Office of Administrative Affairs. They also claimed that, despite being notionally transparent, many of the final decisions were made behind closed doors, after the observers had been dismissed, and that the committee had not treated the candidates equally. The general gist of the criticism was that the committee had largely done the president’s bidding.
This time there seemed to have been no complaints from within the government. On the contrary, on 16 November 2016, Omid Maisam, a deputy spokesman for Dr Abdullah, told AAN that the chief executive was happy with the transparency in the Selection Committee and that it did its work in the presence of national and international observers. The chief executive himself said that although “no one can claim that the Selection Committee’s work has been perfect and without shortfalls and defects,” it had done the best job possible given the situation in Afghanistan.
After more than one month of deliberation, the committee on 9 November 2016 submitted a shortlist of candidates to President Ghani. It held a press conference the following day, where it explained in detail the procedures and criteria for the shortlisting process. Jawid Rashidi, the head of the Selection Committee, said that, out of a total of 720 applicants, the committee had selected 21 candidates for the IEC and 15 for the ECC. Rashidi stressed that there had been no undue political pressure and that the committee had received no recommendations. The Selection Committee further detailed the process in a 32-page report (which does not seem to be available online) that provides tables containing code numbers for the applicants who were excluded from the process in each phase, with the reasons for their exclusion.
After receiving the shortlist, President Ghani made a point of engaging a wider circle in the actual selection and appointment of the commissioners. He formed an interview panel (comprised of Chief Executive Abdullah, Second Vice-President Danesh, Attorney General Farid Hamidi, Muhammad Zaman Sangari, a member of the high council of the Supreme Court, and Muhammad Qasim Hashimzai, head of the ICOIC; the president’s office had also requested the UN Special Representative to Afghanistan to be part of the panel, but he had apparently declined) that interviewed all shortlisted candidates and held two meetings with political and jihadi leaders; the first after the Selection Committee submitted the list, and the second after he had finished the interviews.
Earlier, in the summer, the president and the chief executive had been embroiled in an open crisis (see previous AAN reporting here and here), so there was considerable concern that the rift would be reopened during the potentially fraught selection and appointment of the new commissioners. The process, however, seems to have gone smoothly and on 22 November 2016, the 12 new electoral commissioners (seven for the IEC and five for the ECC) were sworn in at the presidential palace. During the event, the president emphasised that “while legally the authority to select candidates from the proposed list is granted to the president, I preferred to share this responsibility with my colleagues, so that we could conduct the assessment and interviews together and select competent personalities for this job.” The chief executive reciprocated and thanked the president for his “essential consultation with us and colleagues” in the process.
On 28 November 2016, however, the New National Front of Afghanistan, a political grouping that has presented itself as political opposition (see AAN reporting here), called the appointments “non-transparent and interest-based,” saying it was “very concerned about the transparency of next parliamentary and presidential election.” (The Front also called the appointment of the former IEC and ECC members as advisers to the president “a political bribe, which aims at hiding the 2014 election frauds.”) This was echoed by Jandad Spinghar, head of Afghanistan Election Watch (AEW) and former electoral adviser to the chief executive, who said that “ethnic quota and doling out quota to politicians” would only cause many more controversies in future elections. The criticism seemed to target the fact that both the committee’s shortlist and the final list of appointees had been neatly divided between people from all different ethnic groups, implying that this must have come at the expense of merit and expertise. (The electoral law, in article 14, does provide for ethnic and gender composition of the electoral commissions). Although both groups represent a minority within in their constituencies, their criticism may linger.
There were also substantive concerns raised, including that the new members of the electoral bodies lacked the necessary electoral experiences and expertise and could not be expected to properly manage future elections. Except for Najibullah Ahmadzai, now the chairman of the IEC, the bios of the other commissioners do not indicate much relevant election-related experiences. There have also been allegations that their educational documents have not been checked properly. According to article 16 of the electoral law, membership of an electoral commission can be terminated if it is proven that a commissioner has falsified biographical data. If this is indeed the case, it will reflect badly on the selection process and the credibility of the new commissions, even before they settle down to plan and embark on the next electoral process.
What will happen now?
On 27 November 2016, the IEC elected Najibullah Ahmadzai as its chairman, Wasima Badghisi as the deputy for operations, Abdul Qader Quraishi as the deputy for finance and administrative affairs, and Gula Jan Badi Sayyad as secretary and spokesman.
The next important appointment is that of Chief Electoral Officer (CEO) and head of the secretariat. Since former CEO Zia-ul-Haq Amarkhel resigned from his position in 2014, amid allegations of serious electoral fraud, the secretariat has been run by an acting head. Sayyad, the IEC spokesman, told AAN that the commission would advertise the position of the CEO soon and conduct an interview process to select three candidates for the post and to introduce them to the president (according to article 22.3 of the new law).
The IEC’s next job, based on the legislative decree, is to conduct a technical study on how to “determine and divide” the electoral constituencies for the Wolesi Jirga and the provincial councils – within three months. It is unclear what happens after that. While the decree states that the cabinet shall assess the report and take a decision accordingly, it is not specified whether it can modify the IEC’s proposal. It is, however, unlikely that the cabinet would be in any better position to agree.
The IEC will also need to plan for the new voter registry. Although the law does not explicitly state that the IEC will have to invalidate the existing voter cards, it will need to organise some form of new registry from scratch. The IEC’s new spokesman Sayyad told Tolo on 3 December 2016, “If other government departments cooperate with us, we in cooperation with the Ministry of Interior and the Central Statistics Organisation will prepare the list of voters and will specify the electoral zones.” This seems to point to an underestimation of what both tasks will entail.
To develop a voter registry that links voters to polling stations, the IEC will first need to specify the list of polling centres, a process wracked by continuous suspicions that certain areas are being under- or over-serviced. Article 7.1 stipulates that the commission has to take into account the number of voters and their geographical locations in a balanced manner, but the lack of solid data and the prevailing security conditions continue to make it difficult to establish a balanced, and stable, distribution. This will only become more pronounced as the size of the constituencies decreases and the stakes rise (with less seats and possibly a winner-takes-all system).
Earlier this year, in its – unrealistic – planning for the missed election date of 16 October 2016, the previous IEC had allotted two months to carry out a reassessment and balancing exercise of the polling centres, and four months for the revalidation of existing cards and the registration of Afghans who had come of age or who for other reasons needed a new card. A whole new registration would obviously take much longer.
The IEC will also need to grapple with the fall-out of the 2014 elections, particularly among the technical staff that had worked in the secretariat. Many of them are still proud of the technical performance of the IEC in 2014, compared to the 2009 presidential and 2010 parliamentary elections, and angry that the process was discredited by what they consider politicisation by the campaign teams. Some reproach themselves that the IEC was unable to prevent the political unravelling of the process. This may have dented their confidence and could affect their ability to start the planning process.
Finally, do all the changes and developments add up to the needed electoral reform?
This question has two parts: do the changes add up to reform as understood and agreed in the NUG agreement and, do they provide the framework for workable elections? The government seems to think this is the case, on both counts. On 22 November 2016, in his speech at the inauguration of the new commissioners, Vice-President Danesh noted that, “It is worth mentioning that all defects of the previous laws have been addressed in this law and that most of the reform recommendations [by the SERC] have been incorporated.” The chief executive, who had pushed for a complete overhaul of the IEC and the ECC members, issued a celebratory statement on 22 November 2016, shortly after the swearing-in of the new commissioners, calling their inauguration the fulfilment of one of his “fundamental commitments in the area of electoral system reform based on the political agreement.” This, however, seems to be a very charitable reading of both the substance of the reforms and the process through which they were arrived at.
Outside the government, Assadullah Sadati, an MP and member of the SERC, seemed to more accurately reflect the prevailing sense of messiness, when he said that “the whole reform has been reduced to the changing or replacing of some individuals and [now] the government thinks they have carried out reform. I think the future elections will not be better than the past elections.”
All in all, although two big hurdles have been taken – the passing of a new electoral law and the appointment of the electoral bodies – the main practical and political problems remain unchanged. And the next controversy is just around the corner, as the IEC will need to come up with a proposal as to how to “determine and divide” the electoral constituencies.