Had MPs approved the presidential legislative decree ‘reforming’ the electoral commissions, Afghanistan would now be significantly closer to holding parliamentary and district elections. (And the National Unity Government could have claimed to be pushing forward on electoral reform, something required by the agreement that established it.) However, after three days of ill-mannered discussion, MPs roundly rejected the decree. AAN’s Salima Ahmadi, Ali Yawar Adili, Lenny Linke and Kate Clark report on what happened and why – and what could happen next.
The Structure Law, officially called the Law on the Structure, Duties and Authorities of the Independent Election Commission (IEC) and Independent Electoral Complaints Commission (IECC), is significant as it controls who sits on the two election commissions. In the past, the commissioners have had a huge impact on who controls and who ‘wins’ elections. They have been blamed for earlier disputed elections, including the 2014 ballot. The National Unity Government, formed as an attempt to smooth over that bitterly disputed 2014 poll, promised electoral reform as a key plank of its founding agreement (full text here). However, the current attempts at reform, like earlier ones, have largely, in the end, boiled down to who controls and who sits on the electoral commissions.
This was the second presidential legislative decree on the Structure Law. An earlier one had been rejected in December 2015 (see AAN reporting here), and the latest was a greatly watered down version with any attempt at actual electoral reform of the commissions having disappeared from the text. The new decree would also have allowed members of both electoral commissions to be changed, but it had lost its slightly more diverse set of people who were to sit on the Selection Committee. The committee provides the ‘long list’ of candidates for the two electoral commissions from which the president would make his final selection.
The latest draft of the decree was sent to parliament on 23 April 2016. As AAN has reported, MPs showed little urgency in grappling with the new decree. Preoccupied with other issues and failing repeatedly to get quorums in commission meetings, it took a month and a half for the house to set a date to discuss and vote on the decree (which happened on 11 June 2016). It is also worth noting here that the legality of the current parliament is also in question: according to the constitution, its term expired on 22 June 2015; it was extended by a presidential decree just a few days before that date. Some MPs have argued of their fellows that they have no interest in getting on with elections, although others reject this.
The decree had first to be scrutinised by joint sessions of parliamentary commissions, the specialised committees of MPs that deal with specific issues, such as foreign affairs, security or justice, and discuss and review draft legislation, before it goes to the plenary sessions for discussion and voting (for more information, see this previous AAN dispatch. After two joint sessions of various commissions and still no agreement, a third one was held on 5 June 2016. Eight out of the total 15 commissions were represented and, in the end, all agreed on all the articles of the decree except for one contentious point, an amendment proposed by the Judicial, Women’s Affairs and Legislative Commissions which said that the president would appoint the members of electoral commissions in consultation with the Chief Executive Officer (CEO). The stage was then set for MPs to discuss the amended decree in a plenary session. (For more detail on this, see footnote 1.)
Off to a chaotic start: the debate
On Saturday, 11 June 2016, the long-awaited, presidential decree on the Structure Law was put on the agenda and the Wolesi Jirga erupted into a heated and ill-natured debate. MPs shouted at each other and at the officials of the house, the Administrative Board, trying to stop discussion and insisting they go directly to the vote. When MPs spoke in favour of the decree, others pounded the tables, not listening and trying to prevent others from hearing the pro-decree speeches. MPs like Farhad Azimi from Balkh (see here) declared the decree unconstitutional and a ploy by the government to send such a badly drafted decree that MPs would be forced to reject it and then would be blamed by the public for standing in the way of elections. Pro-decree speakers like Fawzia Kufi from Badakhshan accused anti-decree MPs of being so useless they were trying to block elections because they knew the public would not re-elect them. Still other members, like Abdul Satar Khawasi, from Parwan province who is a member of the Legislative Commission, said no decree was needed and the government’s “empty slogans of reform” should be set aside and they should get on with elections using the old commissioners.
The Speaker of the House, Abdul Rauf Ibrahimi, however, refused to allow a vote. Instead, insisting that the Rules of Procedures be followed, which require first the presentation of a tasked commission’s report and then gives MPs an opportunity to speak, repeatedly asked the Judicial Commission to present the comments of the joint sessions. In the end, Ibrahimi asked for another (fourth) joint session to come up with a unified position on the decree the following day, 12 June 2016. He then announced the end of the session, despite many MPs insisting no further delay on the vote was necessary.
MPs force the decree onto the agenda again
Two days later, on Monday, 13 June 2016, parliament had been due to question the Ministers of Defence (acting) and Interior and the (acting) General Director of National Directorate of Security (NDS) about increasing insecurity in Uruzgan and Helmand provinces, the assassination of MP Sher Wali Wardak in Kabul on 5 June 2016 and recent abductions and killings of civilians on major highways in the north. (These security concerns had been raised in nearly every session of the Wolesi Jirga for the last month during the free hour discussion.) However, the MPs decided they wanted to discuss and vote on the Structure Law decree instead. Enough MPs’ signatures were gathered and then a majority of MPs voted to do just this. (2) Parliamentary observers thought the rush to vote was motivated by the decree’s opponents who feared a further delay would enable backers of the decree (mostly those supporting the CEO) to gather support inside and outside parliament and the decree would be approved.
The plenary session started with Head of the Judicial Commission Sayyed Hassan Sharifi Balkhabi briefing the house on the fourth joint session of the commissions, which had looked at the decree the day before. He said rapporteurs of all the 15 commissions had been present; representatives of nine had rejected the decree, while six commissions had approved it, after proposing several amendments to the draft law. (AAN has not been able to find out what the amendments were, apart from the one to include CEO Abdullah with President Ghani in the final selection of commissioners.) (For an overview of how the fifteen commissions voted, see footnote 3).
In a bid to pre-empt another chaotic session and also in acknowledgement of MPs’ calls to move swiftly to a vote, Secretary of the House Abdul Rauf Enami announced that only the rapporteurs of the commissions would be allowed to speak. After five of the fifteen had spoken, Speaker Ibrahimi intervened and said it was not necessary to listen to all 15 as it was clear there were two camps among the MPs, those in favour and those against the decree. In fact, the first five speakers had represented both the opponents and proponents of the decree – two spoke against it and three in favour.
The five commission representatives who spoke had a variety of views.
Abdul Qader Zazai Watandost from Kabul and member of the Wolesi Jirga’s Commission for International Affairs, presented (see here) the anti-decree arguments as follows: it is against article 79 of the constitution (4) which says the president can only issue legislative decree when there is a pressing need; he said such a ‘pressing need’ could only come when the parliament is in recess and there is a legal vacuum concerning a specific issue. But, Zazai Watandost said, there had been no pressing need to issue this decree when parliament was in recess because an approved law was already in place. He also said the president had to send decrees to parliament within 30 days, but this one arrived after 48 days. Finally, the Wolesi Jirga amendment bringing CEO Abdullah into the selection process represented interference by the National Unity Government leaders in the two election management bodies.
Abdul Sabur Khedmat, MP for Farah and member of the Transport and Telecommunication Commission, said the decree should be rejected because President Ghani had no intention of holding elections, and sending the decree in its current form to the Wolesi Jirga had split MPs and was intended “only to deceive the nation and block the reform process.” He also suggested that, given the current deteriorating security situation, it was not possible to hold free and fair elections. “We want an election,” he said, “but none of the provinces are safe enough to hold elections.”
Daikundi MP Nasrullah Sadeqizada Nili, a member of the Finance and Budget Commission, and a supporter of the decree said, “We have been elected by the people and now the nation wants another election. New elections can be held only after electoral reforms are implemented. The House should approve the decree to enable that reform.” He also said MPs should approve the decree because Afghanistan could not survive without continued assistance from the international community which had set electoral reform and elections as a pre-condition for continuing their assistance.
Abdul Hafiz Mansur, a Jamiati from Kabul and member of Wolesi Jirga’s Central Audit Commission, also argued in favour of the decree, saying that MPs always claim that they want effective electoral institutions, but these could be created only after electoral reforms are implemented. “This decree,” he said, “can be a key to these reforms.” He also urged MPs not to reject the decree blindly.
Fawzia Kufi, Head of the Wolesi Jirga’s Commission for Women’s Affairs, feared government trickery if the decree was not approved: “Part of the government does not want the upcoming parliamentary elections to be held. Probably, there will be no elections held this year or next year but the Wolesi Jirga should not take responsibility in the public opinion for not holding elections by rejecting the decree.” She said “the government may issue another decree when the Wolesi Jirga goes on summer recess in which case it will not be able to play any role [in electoral reforms]. It is better that the Wolesi Jirga now reviews the current decree and approves it with the necessary amendments included.”
Wolesi Jirga MPs reject the decree – apparently for many different reasons
The decree then went to the vote: of 153 MPs present, 126 raised their red cards to reject the decree and 27 raised their green cards to vote for it (the ‘pro-decree-ers’ are listed in footnote 5). Looking at the result of the vote, it is clear that a clear majority of the MPs were not behind this attempt at election reform and nor were they convinced by the arguments of the political camp that has been pushing for it. Various theories were brought forward about why MPs voted for or against the decree – many saw the vote as a reflection of not just the power struggle between President Ghani and the CEO Abdullah, but also the personal interests of individual MPs, often linked to what they felt would create the best conditions for them getting a seat in the next parliament.
Those who voted in favour of the decree appear to be a rather homogenous group with mostly non-Pashtuns, often affiliated with CEO Abdullah’s camp. The heads of the three commissions (Judicial, Legislative and Women’s Affair’s Commissions) who proposed the amendment to include CEO Abdullah in the selection process for the commissioners are all considered supporters of Abdullah (Qazi Nazir Ahmad Hanafi, Legislative Commission, and Fawzia Kufi, Women’s Affairs Commission) or his camp (Sharifi Balkhabi, Judicial Commission is seen as close to deputy CEO Muhammad Mohaqeq).
As to those who voted against, Head of the Judicial Commission Sharifi told AAN they belonged to three political circles: those connected to current members of the electoral commissions (so, in effect, they were voting against their allies’ replacement), those allied to former president Hamed Karzai (more of which below), and, finally, supporters of the current president – many MPs were under the impression that the Palace did not want the decree to pass, in particular with the amendment to include CEO Abdullah in the final selection process alongside the president.
Another line of analysis stressed personal interests over any thinking to do with either of the two main political camps in the national unity government. An MP who asked to remain anonymous said some MPs had understood the decree to be a punishment against the current electoral commissioners and thought this unfair; this group included, in particular, those MPs who hoped that the current commissioners would support them in the next election. She said that, generally, MPs had voted according to their personal interests – whether they wanted to stay in parliament and whether they had a deal with current commissioners to support their re-election. Similar strands of analysis came from the media. Hasht-e Sobh, for example, wrote, “Some MPs have political and personal motives for opposing the decree on electoral system reform. Some MPs imagine that continuation of the status quo is in their interest.” Mandegar Daily, considered sympathetic to the Abdullah camp, meanwhile, suspected the president’s hidden hand:
The president’s position is ambiguous in this respect and it is not clear whether he supports reforms to the electoral system or opposes it. Before this, there were rumours that the president is not that willing to bring reforms to the electoral system of the country and tries to either leave it silent or to let it get lost without destiny in the noises in the parliament. (see here)
Another theory posits the influence of former President Karzai behind the MPs’ vote, that he believes the National Unity Government’s term ends in September of this year and a traditional Loya Jirga should be convened to establish a transitional government, after which presidential and parliamentary elections should be held simultaneously (see AAN’s previous reporting here). According to this line of thinking, he would be mobilising to sabotage any chance of holding elections before then. Naim Ayubzada, a member of the Selection Committee who established an election watchdog organisation, Transparent Election Foundation of Afghanistan (TEFA), for example, said the MPs’ rejection of the decree was premeditated and orchestrated by these political circles, including current members of the electoral commissions who, he said, had wanted to “provoke.”
Reactions to the rejection
The Wolesi’s Jirga’s rejection of the Structure Law decree produced strong reactions from a broad spectrum of individuals, including MPs, the presidential palace, media, election observing organisations and civil society. Some, like MP Fawzia Kufi said the rejection “add[s] to the problems,” and that MPs were there “to help find solutions not add to the problems.” Again, the accusation came that the government had been lobbying for MPs to reject the decree, for example Balkh MP Farhad Azimi. “Today is a black day in the history of the Wolesi Jirga,” he told the media. “MPs received calls from some circles inside the government and were given false promises [of rewards] to reject the decree, which is a shame for the parliament. MPs, without reading the decree or knowing its content, rejected it.” He said those supported by the Palace and Ghani had “raised red cards.” Daikundi MP Assadullah Sadati, who is a member of the Special Electoral Reform Commission (SERC) was also from this camp (see here). He criticised parliament for rejecting this and the previous and decree, which, he said, had contained small steps towards electoral reform.
From outside parliament, there was also criticism of both parliament and the executive. Abdul Ali Muhammadi, former legal adviser to President Ghani, wrote:
The heads of the government are not prepared to fulfil the commitments set out in the [National Unity Agreement of September 2014] and do not want to convene the Loya Jirga to amend the constitution. Therefore, it is not willing to hold presidential and district council elections either. Consequently, the parliament scored a goal in favour of the national unity government! Of course with elections not being held, the term of the parliament is in place, although with serious question about its legitimacy.
Some social media activists called for the dissolution of parliament. For instance, Abdul Shahid Saqeb said:
Today, the Afghan parliament used democratic mechanisms to say “no” to a legislative decree that guarantees democracy. Afghan parliament tried to stymie elections and guarantee the permanent presence of its members in the seats by voting down the decree. This parliament should be dissolved.
Bashir Ahmad Qasani, a journalist working with 1TV, also suggested to the leaders of the National Unity Government that they should dissolve the parliament (see here): “Now that an interest-seeking and mafia majority in parliament blocks reforms to the electoral system, the only sensible political path is to dissolve parliament.” The Afghan election observer organization, Free and Fair Election Forum of Afghanistan (FEFA), called the Wolesi Jirga’s rejection of the decree “a rejection of election and democracy in the country,” an “irresponsible act” that demonstrated that “that MPs do not value public demands.”
Hours after the vote, however, President Ashraf Ghani’s Office criticised the MPs’ rejection of the decree, describing it as a “regression” in the path of electoral reform: (see here)
The government and people expected respected MPs to propose their amendments if they disagreed with articles of the law, and then approve the law to complete the reform process and speed up the preparations for holding elections.
The CEO’s office has been silent until now – no statement has been given and his spokespersons have also not posted any statements on their personal social media accounts.
IEC and IECC responses
On 14 June 2016, the IECC held a press conference to clarify its position after the decree was voted down. Spokesman Nader Mohseni said it was technical reforms that were needed, but these had not even been included in the decree; instead it was intended to only serve ‘political interests’. (see here): “It included only the changing members of electoral commissions and therefore provided ground for more interference by foreigners in the national process of election.”(He is referring to paragraph 2 of Article 23 of the draft law that allows for two international electoral experts as non-voting members on the IECC.) He also said, “The aim… was to appoint people affiliated with government factions instead of the current commissioners …[and] not a reform of the electoral system.”
On 15 June 2016, the Independent Elections Commission (IEC) also issued a press release (emailed to AAN). It welcomed the Wolesi Jirga’s rejection of the legislative decree as “a positive step towards the lawfulness and independence of the Independent Election Commission.” It said the Ministry of Finance had committed 10 million US dollars to fund the upcoming Wolesi Jirga and District Council elections and also promised, “the Commission will soon share information about the electoral calendar with the people of Afghanistan.” Yet the IEC is already, legally, too late on this. The IEC announced in January that the elections would be held on 15 October 2016 (see here) and reiterated this in a press release it sent out on 15 June 2016 (email received by AAN). Practical considerations aside, the law says the electoral calendar must be published 120 days before election day which, if parliamentary and district elections were to be held on 15 October 2016, would have to have been done on 17 June, at the latest. (6)
The rejection of the decree, of course, leaves the current set of IEC commissioners looking more secure, at least for now – and an election in 2016 in peril even more than before.
What happens next and what is at stake?
All eyes are now on the upper house, the Meshrano Jirga. If senators reject the decree, it becomes void. Even if the Meshrano Jirga approves the decree, it still only has a slim chance of eventually succeeding, as there would still need to be approval by the Wolesi Jirga after a joint commission by both houses to come up with a suitable new version to be voted on. (7)
In December 2015, after MPs rejected the earlier version of the decree on the Structure Law, as well as another decree on the Electoral Law (which had amended and added to the current electoral law, for example, increasing women’s quotas, adding seats to the Wolesi Jirga and instituting voter lists linked to specific locations), senators in the Meshrano Jirga followed suit. They voted down both decrees on 5 January 2016, without even discussing the merits of the amendments. Lobbying of senators for and against the current version of the Structure Law decree has already started. Opponents are calling on the Senate to follow the MPs’ lead. “We thank members of the Wolesi Jirga for rejecting the decree,” said IECC spokesperson Nader Mohseni, for example, “and ask the members of the Meshrano Jirga to decide on the decree considering the sensitivity and intricacy of the issue.”
The government may feel it has another option, asking the Supreme Court for a ruling on the decree instead, under the justification that the parliament is in its last working year when it is no longer legally allowed to discuss electoral laws. (This is an old argument that, in the past, has had various outcomes depending on who wants what.)
Meanwhile, time ticks by. If parliamentary and district elections are to be held, they need new laws. Yet, it will be difficult to sort all this out. This is not a straightforward tussle between clear camps each of whom share common ideologies or goals. The motivations and interests of individual MPs and within the various political camps are extremely varied and murky (is what a person says he wants actually what he wants?). This makes negotiations and coming up with a plan of action that is acceptable to enough of the many players difficult. It also makes it easy to sabotage action.
Yet even if the Structure Law decree had been passed, it would hardly have merited the description of ‘reformist’. Indeed, if elections any time soon are hard to envisage, the prospect of free and fair elections look even more illusory. In light of the upcoming NATO summit in Warsaw in early July and the Brussels conference on aid to Afghanistan in October 2016, national leaders are having to face the hard reality that elections and election reform are still no nearer. They must be wondering what they are going to tell their donors and military supporters.
(1) After the 2014 presidential election, Dr Ghani and Dr Abdullah negotiated a political agreement to form a government of national unity. A central part in the negotiations was a commitment to electoral reform. Since then, the process of electoral reform has been slow and unsteady. After a protracted disagreement between President Ghani and Chief Executive Officer (CEO) Abdullah on who should lead the reform portfolio and what should be its composition and authorities (see here for more detail), the National Unity Government finally formed the Special Electoral Reform Commission (SERC) as prescribed in the political agreement to review and propose reforms to electoral structures and laws. On 6 September 2015, President Ghani issued two decrees (84 and 85) amending respectively the Electoral Law and the Structure Law. The amendments to the two laws adopted some of SERC’s recommendations (see here for details). However, the Wolesi Jirga rejected both decrees on 21 and 26 December 2015. Following suit, Meshrano Jirga also voted down both decrees, on 5 January 2016.
On 28 February 2016, President Ghani issued two new legislative decrees number (158) and (159) to endorse the Electoral Law and Structure Law apparently approved by the cabinet on 10 February 2016. The two decrees along with the laws have been published in official gazette (issue 1207) on 16 March 2016. A Dari/Pashtu soft copy of the decree and the laws is available on the Ministry of Justice’s website here.
On 23 April 2016, 48 days after the decrees were issued, only the decree on the Structure Law was finally sent to the parliament. (The decree on the Election Law has not yet been sent to parliament for approval.) Initially, it was unclear whether and when the Structure Law was going to be sent to the Wolesi Jirga for approval, as required by the constitution (see here for more detail). It took the Wolesi Jirga more than one and half months (49 days after the decree was submitted to parliament on 23 April 2016) to settle on discussing in a plenary session on 11 June 2016.
(2) AAN was not able to find out how many MPs signed the request to change the agenda. According to the internal procedures of the Wolesi Jirga, the Speaker, or at least twenty MPs, can initiate a change of the agenda if they believe there is a more urgent issue that needs discussion. The proposal, from either Speaker or MPs, then needs to be approved by the majority of the MPs then present.
(3) Nine commissions rejected the decree:
Committee on International Affairs, Committee on Complaints and Petitions, Committee on Transport, Telecommunications, Urban and Housing Affairs, Water and Power Supply and Municipal Affairs, Committee on Religious and Cultural Affairs, Education and Higher Education, Committee on Health, Sports, Youths and Labour and workers, Committee on Nomads, Tribal Affairs, Refugees and Migration, Committee on Internal Affairs and Security, Committee on National Economy and Committee on Defence and Territorial Affairs
Six Commissions approved the decree and proposed amendments to it:
Committee on Women’s Affairs, Civil Society and Human Rights, Committee on Justice and Judiciary Affairs, Committee on Legislative Affairs, Central Audit Committee, Committee on Natural Resources and Environment and Committee on Finance, Budget, Public Accounts and Banking Affairs
(4) Article 79 of the Constitution states: During the recess of the House of Representatives, the Government shall, in case of an immediate need, issue legislative decrees, except in matters related to budget and financial affairs. Legislative decrees, after endorsement by the President, shall acquire the force of law. Legislative decrees shall be presented to the National Assembly within thirty days of convening its first session, and if rejected by the National Assembly, they become void.
(See AAN’s analysis here)
(5) MPs who voted in favour of the decree were: 1) Chaman Shah Etimadi, MP Ghazni; 2) Abdul Rauf Ibrahimi, Speaker of the House from Kunduz; 3) Abdul Rauf Enami, Secretary of the House from Badakhshan; 4) Erfanullah Erfan, Assistant Secretary of the House from Kabul; 5) Farhad Azimi, Balkh; 6) Saleh Saljoqi, Herat; 7) Hafiz Mansur, Kabul; 8) Sharifi Balkhabi, Sar-e Pul; 9) Haji Muhammad Abduh, Balkh; 10) Ghulam Faruq Majruh, Herat; 11) Ahmad Shah Ramazan, Balkh; 12) Shagul Rezayi, Ghazni; 13) Nasrullah Sadiqi Zada Neli, Daikundi; 14) Fatima Aziz, Kunduz; 15) Muhammad Akbari, Bamyan; 16) Dr Nilofar Ibrahimi, Badakhshan; 17) Qazi Nazir Ahmad Hanafi, Herat; 18) Fawzia Kufi, Badakhshan; 19) Jaffar Mahdavi, Kabul; 20) Ghulam Hussain Nasiri, Maidan Wardak; 21) Abdul Wudud Paiman, Kanduz; 22) Samehullah Samim, Farah; 23) Muhmmad Hussain Fahimi, Sar-e Pul; 24) Iqbal Safi Kapisa; 25) Shekiba Hashimi, Kandahar; 26) Sheikh Nematullah Ghafari, Second Deputy Speaker of the House from Helmand; and 27) Masuma Khawari, Samangan. (To see their faces, see this Tolo News video).
Ahmad Behzad, Herat, is also reported as voting for the decree. See Mandegar Daily’s list.
(6) According to electoral law, the IEC has to announce the election date at least 180 days, and publish the electoral calendar at least 120 days before election day. On 18 January 2016, the IEC announced 24 Mezan 1395 or 15 October 2016 as election day. However, so far, no electoral calendar has been published. 16 June 2016 was the deadline for this. AAN contacted the IEC on 16 June when it was unable (or unwilling) to give an exact date for when the calendar would be published.
(7) Article 100 of the Constitution states:
If one House rejects decisions of the other, a joint commission comprised of an equal number of members from each House shall be formed to solve the difference. The decision of the commission, after endorsement by the President, shall be enforced. If the joint commission does not solve the difference, the decision shall be considered rejected. In such situation, the Wolesi Jirga shall pass it with two-thirds majority in its next session. This decision, without submission to the Meshrano Jirga, shall be promulgated once endorsement by the President.
Therefore, even if the Meshrano Jirga approves the decree, it would still only provide a very slim chance for the decree to be finally approved by the parliament.