Karzai’s Court

In January of this year, Afghan President Hamid Karzai yielded to domestic and international pressure and endorsed the seating of the new Afghan parliament against the recommendation of a Special Court he created to evaluate election fraud claims. Few would have predicted then that six months later Karzai’s Court would bring the country to the brink of complete political collapse.

Afghanistan’s 2010 parliamentary elections were yet another reminder of the extraordinary difficulty of administering elections in the midst of a wide scale counter-insurgency effort. Like the 2009 presidential elections, the September 2010 Wolesi Jirga, or lower house of parliament, elections, were marred by widespread fraud, with more than a million votes ultimately invalidated. Despite the pervasiveness of fraud, the process did offer some hope for the nascent democracy. Afghanistan’s Independent Election Commission (IEC) showed strong signs that despite enormous external pressure, it could exercise the necessary independence and impartiality that observers felt was lacking in 2009.

The results of the election were not favorable to Karzai, who fought throughout the process for ways to advantage his political allies. In the pre-election period this included unsuccessfully advocating, against the recommendation of the IEC, for the opening of 87 additional polling stations in some of the country’s most insecure districts. After election day, President Karzai expressed his dissatisfaction with the results from Ghazni province, where Hazara candidates swept the seats despite the presence of a Pashtun majority. The Special Court would become President Karzai’s favorite instrument to remind the new members of parliament that it was he who truly controlled their political fate.

Last year, after Afghanistan’s Electoral Complains Commission (ECC) referred hundreds of cases to the attorney general (AG) to review whether candidates had committed criminal offenses, the AG decided to submit 232 candidates to Afghanistan’s Supreme Court for adjudication, despite no provision in the electoral law authorizing it to do so. In the weeks that followed, it became clear that the AG was not guided by a legal framework but motivated by a preferred political outcome. Indeed, the AG’s office was outspoken in voicing its desire that the results of the elections should be invalidated entirely.

On the 21^st of December, the Supreme Court took the next step by recommending that President Karzai establish a Special Court to further investigate and adjudicate the claims of disaffected, defeated candidates. On the 26^th of December, President Karzai approved the creation of a Special Court through presidential decree and named Sadiqullah Haqiq, head of the Kabul Court of Appeals, to lead the court. According to the president and the Supreme Court, the Special Court would begin investigating results, and would have the authority to make changes to the results of the September elections.

Shortly after the creation of the court both the IEC and ECC disavowed the court and reaffirmed their position that the authority to administer elections and announce results was the sole duty of the IEC and adjudication of complaints was that of the ECC. The international community publicly supported the independence of the country’s legitimate electoral institutions and called on all actors to respect their decisions.

Often, it is ambiguity in the Afghan legal framework that causes such political impasses. In this instance, however, the law is clear. The constitution, through Article 156, establishes the IEC as the sole authority for the administration of elections and grants it exclusive authority for the announcement and certification of election results. Neither the constitution nor the electoral law sanctions the creation of a special court to review election results. Nor does either document grant the Supreme Court or Attorney General the authority to engage in electoral affairs.

The idea for the creation of the court likely did not originate with the Supreme Court, but directly from within the president’s office; rather, during Democracy International’s observation of the process, many well-connected Afghans reported to us that the idea came from two of President Karzai’s own legal advisors, who were seeking out ways to alter the results of the September elections that had strengthened opposition to Karzai in the parliament.

After months of the Special Court reportedly conducting re-counts and investigations throughout the provinces, it finally announced a ruling on June 22 in which it declared that 62 sitting members of the parliament should be replaced. The decision launched the country into a political crisis and elicited an immediate reaction from parliament, which voted for the removal of the attorney general and six members of the Supreme Court. The crisis reached new proportions last Wednesday, when the parliament began debating the impeachment of the president, who has reportedly proposed his own list of 17 candidates to the IEC who should be immediately certified as winners. The instability has, according to Afghan news sources, motivated members of parliament to begin carrying firearms into sessions of parliament, and has resulted in physical altercations between MPs.

The authority to arbitrate constitutionality lies with Afghanistan’s Independent Commission for the Oversight of the Constitution. In this instance, however, the commission has only contributed to the confusion. In January, the commission reportedly met with a group of MPs and expressed its opinion that the establishment of the Special Court was illegal. This was reported widely at the time in Afghan newspapers. Just last week, in an apparent about face, the constitutional commission issued a decision stating that the IEC should cooperate with any bodies investigating election issues. To complicate matters further, a member of the constitutional commission appeared on TOLO television (the nation’s most popular political news outlet) the next day and declared the Special Court illegal and explained that the decision of the commission had been misunderstood.

The implications of the Special Court’s ruling are serious, and the willingness of the president to embrace its legitimacy threatens to undermine more than just the parliament. If the court’s decision is ultimately respected and the makeup of the parliament is altered, the legitimacy and credibility of the IEC and future Afghan elections will forever be tainted. Candidates and their supporters are unlikely to respect the authority of an election commission whose decisions they know can be trumped by ad-hoc courts. In addition, if the Special Court brings criminal charges against sitting parliamentarians, it will also undermine the authority of Afghanistan’s legitimate judicial bodies.  At a time when a country struggling to establish robust democratic institutions needs support from its executive, that executive seems all too willing to endorse the defanging of those institutions.

The political implications are even more serious. If Karzai’s Court is successful at shaking up the composition of the lower house, the effects could be felt far beyond the body’s votes on the president’s initiatives. The president would then likely have a parliament more amenable to his call for a Loya Jirga, a powerful traditional body that has the authority to amend the constitution. The current parliament has called the president’s plans for a Loya Jirga unconstitutional, on the basis that chairpersons of district councils, who are constitutionally mandated delegates to a Loya Jirga, have not yet been elected. Not only would President Karzai likely have the support in the lower house to move forward with his plans, he would also have 62 more votes in favor of whatever agenda he decides to pursue within the jirga, including a possible constitutional amendment to allow him to seek a third term.

With no clear ending in sight, the president, by supporting the actions of a Special Court with no legal authority, has brought the country to the brink of political collapse. What happens next is anyone’s guess. The IEC has so far shown resolve against Karzai and has reportedly presented him a plan to solve the impasse. While details of the plan have yet to be released, there are rumors circulating that it would require President Karzai to declare the Special Court illegal and to honor the independence of the IEC and the credibility of its decisions. In return, the IEC would agree to review some previous decisions of the ECC, which it believes is allowed under Article 65 of Afghanistan’s Electoral Law.

If the president disagrees with the IEC’s plan, he could always attempt to replace the leadership of the IEC, which is within his constitutional rights, and thus pave the way for the implementation of the Special Court’s decision. This would not, however, prevent the likely violent backlash from the 62 parliamentarians the Special Court is threatening to remove. Perhaps a more likely outcome is for the AG to circumvent the IEC altogether and begin implementing the Court’s decisions himself, as he has promised recently to do. This would likely entail arrests of sitting MPs and would undoubtedly lead to political chaos and possibly violence.

The crisis created by Karzai’s Court underscores the necessity for a genuine Afghan led dialogue on democratic reform. Options must be explored to strengthen the independence and resilience of Afghanistan’s democratic institutions. To achieve any level of democratic sustainability, Afghan politicians must operate on a stronger democratic foundation, one developed with the support of civil society and the very institutions President Karzai is attempting to delegitimize (the IEC, the ECC, and the lower house of parliament). If the international community and the Government of Afghanistan do not begin to take democratic reform seriously, a strong democratic Afghanistan will become even more of a fantasy than it is now.

Jed Ober is Director of Programs at Democracy International. Throughout 2010, he served as Democracy International’s Chief of Staff in Kabul where he oversaw the largest international election observation mission to Afghanistan’s 2010 parliamentary elections. Democracy International’s final observation report can be downloaded at www.democracyinternational.com.