Karzai blinks in Afghan election crisis

The first good news in a long time has emerged from Kabul in the ongoing dispute over the 2010 Afghanistan Parliamentary Election results. Afghan president Hamid Karzai issued a decree on Tuesday that dissolved the Special Election Tribunal he had created to investigate reports of fraud during last September’s vote, and confirmed that the country’s Independent Election Commission (IEC) has the final word on determining who was legitimately elected.

This decree represents a significant step back from the brink of a Constitutional crisis that had been escalating between the President, the Parliament, and the courts. As such, it is a victory for the rule of law in Afghanistan, where politics has been winning the battle over the letter of the law and the Constitution in most disputes concerning the distribution of political power.

The question about the integrity of the election results and the legitimacy of the Parliament is still an open one, however, and depends on what action the IEC takes with its restored electoral authority. According to the new decree, the Special Election Tribunal’s findings will be turned over to the IEC for review. The IEC must then take a decision on whether or not any of its previously certified results need to be revised. This places the burden of dealing with the effects of what all agree was widespread fraud in the 2010 election with the electoral authorities, where it belongs.

The challenge now is for the IEC to be transparent in its verdict, and not be seen as engaging in purely political horse-trading with the President. If the IEC does de-certify sitting parliamentarians — and rumors of up to 17 removals began immediately after the decree was made — then it must describe what specific evidence of fraud justified its decisions. Part of the reason the electoral crisis started in the first place was a lack of detailed and verifiable explanations by the IEC and the Electoral Complaints Commission (ECC) about why certain candidates had votes taken away after the preliminary results. This mistake should not be repeated.

At this point, the IEC may take two separate paths to remove a parliamentarian based on electoral fraud. One is based on ballots; if the Special Election Tribunal information shows that tally sheets were altered, ballots were mis-counted, or the voting process at particular polling stations was corrupted, then the IEC should verify these findings by opening ballot boxes in the presence of observers, alter the final vote count accordingly, and certify new results.

The other path is based on personal misconduct by a candidate. If evidence emerges that a candidate committed serious criminal acts during the electoral process – by bribing an electoral official, seizing a polling station, or directly threatening people involved in the count – then they may be removed as a candidate regardless of the number of votes they received. In that case there must be clear and convincing evidence of wrongdoing, and accused candidates must have an opportunity to know and rebut the allegation.

The specific rationale for any changes must be watched closely, because the ultimate legitimacy of the results rests not just on whether undeserving members are removed from the parliament, but also on whether the right people replace them. Afghan electoral law is clear that if a candidate is disqualified from the election or removed from office after the vote, the next candidate with the highest number of votes not in office will win the seat. Given the significant political pressure to ensure particular losing candidates earn a place parliament, the IEC must therefore be clear about how and why any losing candidates may become winners.

How the IEC handles its restored responsibility will determine whether the integrity of the electoral process can be salvaged. The outcome is important for the legitimacy of the present parliament and as a litmus test for whether the IEC can play a neutral role in administering the crucial 2014 presidential election, in which Karzai, who will have already served the maximum two terms in office, is constitutionally barred from running. If the IEC fails to act transparently now, the deadlock between the parliament, president, and the courts will likely continue, and prospects for fair elections in Afghanistan’s future will remain dim.

Scott Worden is a senior rule of saw 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.