Afghanistan’s new election laws

Afghan and international observers recently experienced uneasy joy when two separate election laws were passed by Afghanistan’s legislature and, as if it were the natural course of democratic events, the laws were then signed by President Hamid Karzai. On July 13, the National Assembly passed the Law on the Duties and Structures of the Independent Election Commission (IEC) and the Independent Electoral Complaints Commission (IECC), which will govern the composition and conduct of the country’s election management body and its election watchdog.

Then, on July 15, the National Assembly passed a new electoral law that will provide a much-needed legal framework for the presidential and provincial council elections in 2014, as well as parliamentary elections in 2015. The enactment of these laws concludes a long process which included extended delays, years of debate, and, at times, the involvement of the IEC, Afghan civil society, various executive agencies, the international community, and other Afghan stakeholders.

Most striking to observers of Afghan politics is that President Karzai actually signed off on the new laws. In Kabul, the time-consuming parliamentary process is frequently bypassed altogether. Instead, laws are often drafted by the executive branch and endorsed through presidential decree. This departure from what has become the norm, especially for legislation so critical to the future of Afghanistan’s nascent democracy, is an important step forward for a country still struggling to establish a resilient democratic framework.

These recent developments are curious, however, as similar laws have been presented to Karzai in the past, only to be rejected and sent back to the National Assembly with a laundry list of suggested changes. But very few of the president’s previous suggestions appear in the new laws. Pinpointing Karzai’s motivation to change course – not just with regard to these specific laws, but also his decision to yield to a more democratic legislative process – is critical to understanding how these laws were adopted at all.

Many groups have lobbied Afghanistan’s executive branch to encourage the National Assembly to pass these laws. Most recently, at a July 3 meeting of senior officials in Kabul, the Afghan government was criticized for failing to meet its commitments in the Tokyo Framework (one being the establishment of a robust electoral architecture). Many stakeholders have called on international diplomats to focus more on Afghanistan’s political transition, a focus that now appears to be reality, which is an encouraging development. Leaders in the U.S. Congress and other Western capitals have also recently been focused on Afghanistan’s upcoming political transition.

But Karzai’s political motivations throughout this process have been unclear. Perhaps the outgoing president suddenly came to the realization that another electoral decree with the parliament in recess would be counterproductive and unacceptable to the National Assembly and Afghanistan’s various political coalitions. Although the increased diplomatic focus was likely important in the passage of these laws, it probably was not international pressure or a desire to embrace democratic change that altered the president’s mind. He may have simply realized that the laws contained much of what he and his team wanted (such as excluding international commissioners from the IECC and sustaining the Single Non-Transferable Vote system). It is anyone’s guess as to what really motivated Karzai to ultimately sign these laws, but it seems that by delaying the process at every turn since 2011, he has achieved much of what he wanted.

Now that the laws have been adopted, it remains to be seen whether they address the myriad problems which have plagued Afghanistan during the previous two electoral cycles. In the aftermath of flawed elections in 2009 and 2010, observers and Afghan political coalitions called for an overhaul of the country’s electoral framework to address some of the key deficiencies and fundamental flaws of Afghanistan’s electoral institutions. A closer examination of the new laws shows how they address some of the key issues.

1. The Independence of the IEC and the IECC

Perhaps the most important issue that stakeholders hope the new electoral laws can address is the independence of electoral institutions. It remains to be seen, however, whether the new laws can provide a stronger legal basis to prevent other Afghan institutions from interfering in the election process, as was the case in 2010. While the laws do contain a number of clauses that aim to provide legal protection for the institutions, the most significant change is the introduction of a new selection mechanism to appoint IEC and IECC commissioners.

The new laws call for the leadership of both organizations to be chosen by the president, but only after a selection committee composed of a broad spectrum of Afghan representatives submits a list of 27 suggested candidates to the president for consideration. The composition of the selection commission includes the Speaker of the Wolesi Jirga (the lower house), the Speaker of the Meshrano Jirga (the upper house), the Chief Justice of the Supreme Court, the head of the Independent Commission on the Oversight of the Implementation of the Constitution, the head of Afghanistan’s Independent Human Rights Commission, the heads of registered political parties with at least six members in parliament, and one representative from Afghan civil society.

The decision to use a more inclusive mechanism to appoint IEC and IECC leadership is a step forward in moving away from the perception of bias (and the reality of bias in the case of 2009) created by unilateral presidential appointments. However, the mechanism does not go so far as to create a more formal check on the appointments, such as parliamentary approval.

The selection committee has now been chosen and has already provided its recommendations for IEC appointments to President Karzai, who promptly made his selections. The committee will now turn its focus to the IECC. Despite early progress, it remains to be seen whether this mechanism will lead to the appointment of commissioners that will be seen as impartial by Afghanistan’s competing political coalitions, and whether it provides enough of a check on executive authority so as to instill confidence in the eventual leadership.

2. The establishment of a permanent IECC

Just as challenging as appointing new leadership to Afghanistan’s electoral institutions will be starting one of these institutions from scratch and doing so very quickly. One of the new laws calls for the creation of a new permanent institution for adjudicating electoral complaints. Afghanistan has had electoral dispute bodies in the past, but those bodies were temporary, so there is no current infrastructure in place for a complaints commission.

Once new leaders are appointed through the selection committee process, they will need to move quickly to stand up the IECC. This will entail establishing offices in all 34 provinces and hiring and training staff. However, no funding mechanism is in place to support the creation of the IECC, either financially or technically. To fill this void, the international community will need to provide the initial technical and financial assistance, which needs to happen quickly. The election commission’s current timeline calls for the IECC to be established by August 24 so it can accept complaints during the candidates’ nomination period, which is currently scheduled to take place from September 16 to October 6. In order to meet that timeline, work must start immediately.

3. The Women’s Quota

Afghanistan will also hold elections for its provincial councils in 2014. While the new electoral legislation will not have a significant effect on the administration of the provincial council elections, there was an important change to the quota for women’s representation within the councils. Though one draft of the new electoral law eliminated the 25% quota for women’s representation entirely, a compromise was ultimately reached that resulted in a reduction of the quota to 20%, due in large part to the advocacy of Afghan civil society and outspoken voices in Afghanistan’s lower house of parliament.

By removing the quota altogether from one draft of the law, opponents of the measure effectively set the table for a compromise. While Afghan civil society and the international community can say they worked to prevent the removal of the quota and achieved a reasonable compromise, Afghan women are ultimately disadvantaged. The reduced quota is an unwelcome development for Afghan women, particularly for a provincial level election, where it is even more difficult for women to compete equally with male candidates.

The international community should work hard to ensure that the Afghan government provides security for female candidates at the local level, and supports a robust female candidate recruitment process to ensure that the women who do run, at significant personal risk, are provided the resources necessary to conduct their campaigns effectively. These measures are critical to ensuring Afghan women are well represented at the provincial level.

4. Living with the Single Non-Transferrable Vote System

Another area where the new electoral law falls short is that it maintains the Single Non-Transferrable Vote (SNTV) system for electing provincial council and parliamentary representatives. As has been well-documented, the SNTV system is not conducive to the healthy growth of political parties, which are fundamental to a maturing democracy. Going forward, it will be critical for Afghanistan and the international community to find creative ways to revitalize Afghan political parties, given the reality of the SNTV system.

Though Afghan parties and coalitions are coordinating more today than they have in the past, much of that coordination has been through the Cooperation Council of Political Parties and Coalitions (CCPPC) and has been focused on the electoral reform effort. Now that some of these reforms have been adopted, this body must continue to lobby for reforms that promote party-based political participation. Recognizing the importance of this coordination, Afghan civil society has worked with the CCPPC in its advocacy initiatives, and should continue to do so. The CCPPC’s next focus should be on potential amendments to Afghanistan’s political parties law that can increase the formal participation of parties in elections, and eventually lead to the parties better representing the interests of citizens through the legislature.

Moving Forward

Managing an election is challenging in any environment, and the challenges in Afghanistan are compounded by long periods of ambiguity, last-minute legal changes, and new institutional leadership. This new legislation calls for major changes that will require significant effort from Afghan institutions and their international partners. But the international diplomatic community should view the passage of these laws as the early stages of true progress. Afghanistan certainly has a long way to go, but this is the start of a sustained effort to address shortcomings with its democratic framework.

Now that the legal framework has been improved, we must focus on the next steps to improve democracy in Afghanistan. A peaceful political transition in 2014 is the highest priority and it appears that is now well recognized. Parliamentary elections in 2015 are also critically important as they will be the first elections held under a new Afghan administration and will symbolize either the strength or weakness of the new president. It is also important to continue to focus on reforms that can strengthen democratic representation and lead to a political system in which citizens feel that their elected officials are representing their interests, not simply trying to line their own pockets. The will for such advocacy is alive and well among Afghan civil society and political parties. The international community cannot ignore these voices, and must continue to support ongoing Afghan efforts for democratic reform.

Ultimately, political change must come from within. If Afghanistan is able to hold successful elections and improve its democratic system, it will be because Afghan activists and political leaders worked hard to make it happen. The adoption of these two election laws through democratic means is an encouraging step forward. However, we must recognize the work that is still needed to build a more democratic Afghanistan, and continue to support those Afghans who have devoted their lives to this cause.

Jed Ober is the Director of Programs at Democracy International. The views expressed here are his own.