Election aftermath and the rule of law in Afghanistan

Today would have been the first day of Afghanistan’s second elected parliament had it not been for Afghan President Hamid Karzai’s announcement on Wednesday that the inauguration should be postponed for a month to allow a specially created tribunal to rule on election disputes. If the extraordinary five-member panel of judges appointed by Karzai to review fraud nullifies the results of the September 2010 vote, it will provoke a constitutional crisis and leave Afghanistan without a legitimate parliament at a time when national unity is urgently needed to fight the insurgency and manage a delicate reintegration process with militants. The delay is also a strong signal that the international community’s $500 million investment in Afghan elections over the past two years, and a fundamental pillar of the rule of law in Afghanistan, is about to fail.

The heart of the crisis is a dispute over who has the final say in deciding the results of Afghan elections. The electoral law is clear: The country’s Independent Election Commission (IEC) and the separate Electoral Complaints Commission (ECC) are responsible for investigating fraud and certifying results, which they released on Nov. 24, 2010. Unhappy with the outcome, however, the Afghan government has created a new forum that it hopes will reach a different but more amiable result for the president — either by ordering recounts in certain provinces or by overturning decisions made by the ECC that went against Karzai allies. If successful, the majority of Afghans who have accepted the results will know that despite the international community’s rhetoric over the past 10 years, political expediency matters more in Afghanistan than their votes or the law.

Our work as commissioners on the ECC in 2009 demonstrated the opposite lesson. While Afghan elections are far from perfect, they can help to advance the rule of law when due process is followed. Many voters in 2009 expressed anger about the extensive fraud that was manifest in the first round of the presidential election and feared that, like in Iran months before, the outcome of the vote would be determined by behind-the-scenes political deals. A constitutional crisis was avoided, however, through consistent support by candidates, the international community, and, ultimately, the Afghan government for the electoral institutions that were charged with investigating the fraud and certifying the results. That same commitment is urgently needed now.

In this past election the decisions of the IEC and ECC, like the election itself, were not without controversy. As in 2009, the elections were plagued by national insecurity, inadequate vetting of polling workers, a suspect voter register, and unchecked financial and political pressure on fragile institutions charged with preventing fraud. Not surprisingly, the IEC and ECC found a similar magnitude of fraud — ultimately excluding 1.2 million bogus votes from the preliminary count. While the IEC was initially praised for its diligence, its credibility was increasingly questioned when it became clear the results went against the political interests of the government.  

The voting process in Ghazni, a province that is roughly split between ethnic Pashtun and Hazara populations, illustrates the case. Pashtun districts in Ghazni are in the grips of the Taliban insurgency. Voters there stayed home on Election Day, and many ballots that were cast in Pashtun areas bore visible signs of fraud. Hazara areas were more secure on Election Day, with far less evidence of electoral fraud. As a result, all of Ghazni’s parliamentary representatives are Hazara, with the Pashtun community feeling left out. The "missing" Pashtun representatives from Ghazni became a national political issue when added to other seats where Pashtuns in the first parliament are being replaced by non-Pashtuns as a result of this election. (Pashtuns are estimated to have 15 fewer seats than in the first parliament.) Sensing political opportunity, the Karzai administration has decided to use procedural sleight of hand by having the attorney general complain to the special election tribunal appointed by the president rather than take its case to the electoral authorities or to the Supreme Court, which had indicated they were not inclined to change the results.

The attempt to make an end run around the electoral process misses two key points that are fundamental to good governance and the rule of law in Afghanistan. First, it is false to assume that a member of one ethnic group cannot or will not adequately represent members of other groups. Chairman of the IEC, Professor Fazel Ahmad Manawi, correctly stated, "Our decisions are not driven by issues by tribe, ethnicity, or language, but only by law." This should be the basis of the parliament’s work as well. Second, having fluctuations between parties and interest groups is inevitable in an electoral democracy and forms a key incentive for political reform. The appropriate response to a loss at the polls is to fix the conditions that led to the loss the next time — by advocating for an effective peace process and better organizing political parties — not by creating new forums to artificially reverse an inconvenient result.

If the special court is able to negotiate a new result for the elections, then the independence of the courts and the parliament will be undermined — a profound setback for Afghans as well as for taxpayers in donor countries who are footing the bill for reconstruction and development in Afghanistan. The solution therefore is not a new result, but rather a revised process designed to prevent the kinds of fraud that happened in the last two elections. This should include, but not be limited to, an objective assessment of past fraud and revision of the electoral law to strengthen political parties, improve voter rolls, and promote the appointment of independent election officials.  

The most fundamental and immediate issue at hand is whether the Afghan government will get away with solving its political problems at the expense of a fragile electoral system that, while flawed, has performed its essential duties according to the law. The international community and the Afghan government need to focus on upholding checks and balances in the existing Afghan legal framework rather than try to create a new one to suit a particular political need. To travel down the path the government of Afghanistan is currently taking will only create future electoral chaos and confusion, further undermining the rule of law and democratic development.

Grant Kippen was chairman of the Electoral Complaints Commission (ECC) in the 2005 and 2009 Afghan elections and country director in Afghanistan (from 2003 to 2004) for the National Democratic Institute. Scott Worden served as a commissioner on the ECC in 2009 and is a senior rule of law advisor at the United States Institute of Peace. Both observed the 2010 election on behalf of the National Democratic Institute.