- By Scott WordenScott Worden is an associate at the New York–based law firm Coudert Brothers LLP.
Last week’s spectacle of shoe throwing and fist fighting between two members of the Afghan Parliament arguing over whether Afghan President Hamid Karzai should be impeached illustrates that the worst-case scenario that many feared could result from last year’s disputed Parliamentary elections in Afghanistan is near: a full-blown Constitutional crisis and the collapse of government in Afghanistan.
The concept of impeachment lies at the heart of the dispute over last year’s parliamentary election. President Karzai and members of his Special Elections Tribunal believe that 62 members of Parliament should be removed from office for unspecified fraud during last year’s elections. In return, the Parliament has issued a vote of no-confidence against the Attorney General Mohammad Ishaq Aloko, has voted to impeach six members of the Supreme Court (including three whose terms have expired), and last week began debating impeachment of the president himself.
This raises important questions about what the actual requirements are for removing high officials from office in Afghanistan, which have been ignored so far by the Afghan institutions that are fighting each other’s authority. Rhetorically "impeaching" a person’s or institution’s credibility is one thing. Actually going through a legal removal process is, as Americans learned during President Bill Clinton’s impeachment trial, another. Either way, the compromised legitimacy of the three branches of government in Afghanistan calls into question the fundamental basis of international support for the country, which rests on a partnership with a legitimate government that is capable of ruling with the consent of its people.
To sort out political rhetoric from legal reality, it is important to understand what legal powers and duties each institution involved in the election crises has under Afghan law.
Removing Members of Parliament
First, there is a question about the legality of Karzai’s Special Election Tribunal and its decision that 62 members of Parliament should be removed. This has already been much discussed, and the view of the Parliament, Afghanistan’s Independent Election Commission (IEC), and the international community is that the Special Election Tribunal is not authorized to change the election results. The Constitution and the Electoral Law (which President Karzai adopted by his own decree) give the IEC and the Electoral Complaints Commission (ECC) exclusive authority to adjudicate election results, and the Special Election Tribunal was created by Presidential Decree outside the judicial process for the creation of Special Courts. That should be the end of the matter. But for political reasons, President Karzai has continued to back the authority of the tribunal to impeach the credibility of the legislative branch.
This leaves two ways that a current member of Parliament may be removed, both of which are extraordinary. One is for the IEC to find new evidence of fraud that convincingly indicates its certified results are wrong, such as missing or fake ballots. Article 58 of the Electoral Law gives the IEC power to recount ballots or conduct a re-vote "if the principles of free, secret, direct and general elections have been undermined." Doing this after the certification of results would be unprecedented, would cause the IEC to lose face, and would raise strong political objections (and possibly legal challenges). But it is arguably within the IEC’s Constitutional mandate.
The second path to unseating an elected Parliamentarian leads through the courts. It is conceivable that a candidate would have committed grave personal misconduct during the election, such as vote-buying, that constitutes a criminal offence and would be legitimate grounds for removal from office. But this could only happen after a conviction in an Afghan court of law, with all due process applied. Unlike the Special Election Tribunal’s process, this would include formal charges being registered by the Attorney General, disclosure of evidence supporting the charge, appointment of defense counsel for the accused, a public trial before a duly authorized lower court, a published and reasoned opinion, and subsequent rights to appeal. The fact that the Attorney General and Special Election Tribunal have so far refused to follow this route likely says more about the quality of the evidence against the targeted MPs than about their understanding of the law.
Ousting the Attorney General
As soon as the Special Election Tribunal announced its decision, the Wolesi Jirga (lower house of parliament) issued a no-confidence vote to remove the Attorney General, who had compiled the original dossiers against the investigated MPs. There is no explicit legal provision in Afghan law or the Constitution for such a move, however. Article 64 of the Constitution requires the Wolesi Jirga to approve Cabinet Ministers and the Attorney General, but it is silent on whether the Wolesi Jirga can remove an official after appointment.
In 2006 the Supreme Court considered the issue after the Wolesi Jirga took a vote of no-confidence against then-Foreign Minister Rangin Dadfar Spanta (now National Security Director). The court ruled that Parliament does have an implied Constitutional right to remove a Minister, but that it failed to follow appropriate voting procedures in that case. President Karzai disagreed with the fundamental parliamentary authority and refused to fire Spanta, whereas the Parliament refused to re-vote because it said the Supreme Court was not competent to interpret the Constitution itself. So the powers of Ministerial appointment and removal rest today, mired in legal confusion. Meanwhile, President Karzai continues to support Aloko and has kept him in office.
Impeaching the Supreme Court
The Parliament next voted to impeach six of the nine Supreme Court Justices for requesting that the President convene the Special Elections Tribunal. According to the Constitution, the only way a Supreme Court Justice can be removed from office is through specific impeachment procedures stated in Article 127 of the Constitution: One-third of the Wolesi Jirga may "demand the trial of the Chief Justice of the Supreme Court or any of its members accused of a crime related to job performance or committing a crime" and two-thirds of the Wolesi Jirga must approve it. In this case a two-thirds majority did vote for impeachment, but they have not stated a "crime related to job performance" that is recognized under Afghan law. This makes the vote for impeachment more of a political statement about the Supreme Court’s support for the Special Election Tribunal than a formal impeachment charge that could be pursued in court.
The Parliament is correct, however, in calling for the removal of three Supreme Court justices, including Chief Justice Azimi, whose terms expired last year. Article 107 of the Constitution explicitly prohibits a renewal of terms, and President Karzai has failed to nominate successors – maintaining that the three are serving in an "acting" capacity. There is no "acting" provision in Afghan law, however, and clearly if Supreme Court justices were allowed to overstay their terms and rule on decisions as if they were full members of the court, it would violate the letter and spirit of the Constitution. Questions about the legitimacy of the Supreme Court threaten to undermine the very foundation of the rule of law in Afghanistan because it calls into question who can validly arbitrate disagreements about the separation of powers.
Impeaching President Karzai
The ultimate question of the election dispute has become who leads Afghanistan. Motivated by its anger at Karzai’s insistence on changing the election results, the Parliament began last week to debate his impeachment. MP Mohammad Nayim Lalai Hamidzai (from Kandahar) declared on the floor of the Parliament on July 5 that "the special court has violated the Constitution and [President Karzai] has kept silent against the rocket attacks by Pakistan on Afghan territory, I also agree that the article 69 of the constitution should be applied." Several other MPs expressed similar sentiment in words and by exchanging blows.
This is much easier said than done, however, because Article 69 of the Constitution requires a decision by both the Parliament and a full Loya Jirga (Grand National Assembly) to impeach the President for a specified crime. One third of the Wolesi Jirga must vote to propose impeachment and then a two-thirds majority must vote to approve it. Then the Wolesi Jirga must convene a Loya Jirga within one month. Convening a Loya Jirga according the Constitution is problematic because it requires the presidents of all District Councils, which have yet to be formed, in addition to all members of both houses of the National Assembly and presidents of the Provincial Councils. If two-thirds of a duly constituted Loya Jirga approves, then the president is removed from office and faces a special court for trial on the underlying impeachment charges (in which case First Vice President Marshal Fahim would assume power until a new Presidential election is called within three months).
The Parliament therefore faces the greatest legal obstacles of all to get a valid legal decision for removing Karzai, and success would have devastating effects on what semblance of order the Afghan government does have.
One Way Out
The current conflict between the Parliament, the President, and the courts is a serious dispute about the Afghan government’s fundamental authority. The Executive, Legislative, and Judicial branches do not recognize the other’s legitimacy and, more importantly, disagree on the rules by which they may resolve their dispute. This leaves Afghanistan on the brink of a major Constitutional crisis and, effectively, a suspension of the rule of law. While the dispute is ostensibly about elections, the real stake is whether the democratic government structure created at the post-Taliban Bonn conference and enshrined in the 2004 Constitution will survive intact, or whether it will break under the strain of political discord that is ultimately about the balance of ethnic and regional power and the egos of political leaders.
It is clear that a political solution is needed to break the current impasse. But there is a right and a wrong way to proceed if the current Constitution is to remain a relevant document.The wrong way would be to attempt to ‘split the difference’ in terms of political outcome and to reinterpret the law and the Constitution to fit political agreements. For example, saying ‘62 members removed from Parliament is too many, so we’ll compromise at 10′ and then deciding secretly who those 10 should be without presenting evidence or conducting a trial would reach a political goal, but destroy any expectation for fair elections in the future. Similarly, while an agreement that judges or ministers can serve indefinitely in an "acting" capacity might emerge in exchange for other political capital, it would fundamentally undermine Parliament’s governmental oversight authority.
Instead, Afghanistan needs to find a political solution that also accords with the rule of law – and the international community should demand that it do so. This would mean first conditioning any removal of sitting Parliamentarians on either a public trial or a detailed decision by the current IEC about specific votes that were miscounted. It would also mean agreeing to new Supreme Court nominees to replace the three whose terms have expired before the Supreme Court issues any binding rulings about the Constitutionality of the Parliament or the Special Election Tribunal. In exchange, the president and parliamentary leadership may agree on a broader slate of ministerial and other appointments that are within their legal authority to negotiate. An agreement by the president to respect Constitutional authorities of the IEC, Parliament, and the courts could be used as leverage to convince the Wolesi Jirga to drop their attempts to mis-apply the impeachment laws to suit their political ends.
At the end of the day, the international community’s development commitments to Afghanistan are based on governance benchmarks that were agreed to at the Kabul Conference last year, which include upholding basic governance and the rule of law. If Afghanistan solves the current election crisis by either breaking the system of governance or ignoring the rule of law altogether, then the international community’s commitments should be significantly scaled back at the donor conference this December at Bonn. It is also difficult to see how the U.S. could conclude a strategic partnership agreement with a government that has no legitimate Parliament or Supreme Court. The international community should support a legitimate Afghan government, but it would be wasting its time and money if Afghan officials are selected or removed outside the bounds of Afghan law.
Scott Worden is a Senior Rule of Law Advisor at the U.S. Institute of Peace. He served as a Commissioner on the 2009 Afghanistan Electoral Complaints Commission and was an observer of the 2010 Parliamentary Elections.