The National Unity Government (NUG), which was created to solve the impasse caused by the bitterly disputed 2014 presidential elections, has come under intense criticism for a wide range of real and perceived failures. Its position has been called into question by uncertainty over whether, based on the text of the political agreement, its mandate expires in September 2016 or not. Comments by US Secretary of State John Kerry, in the margins of a visit to Kabul in April 2016, claimed there was no ‘expiry date’ for the government, but this has not put an end to the debate. AAN’s Martine van Bijlert and Ali Yawar Adili take a closer look at the political agreement and at differing opinions on what should happen next.
The National Unity Government’s mandate and timeline
The establishment of Afghanistan‘s National Unity Government in September 2014 was an improvised solution after a very contentious presidential election. A political agreement was negotiated between the two main candidates who had competed in the election’s second round, and who were locked into an ongoing argument as to how the electoral bodies should deal with allegations of mass fraud. US Secretary of State John Kerry flew into Kabul twice to get the two camps to agree to a full-scale audit with the understanding that the outcome would lead to a form of shared government (for more details, see here and here). The deal allowed both contenders to form a government of national unity, while the audit was supposed to determine who would be president and who would be appointed as Chief Executive Officer (CEO), a newly created post. A political crisis was averted – however, the government has since struggled with the contradictions inherent in its structure and the high expectations that followed its promises of reform.
The political agreement that underlies the current government structure (full text here) is based on five main points. These are: (a) the calling of a Loya Jirga to amend the Constitution and consider the position of an Executive Prime Minister; (b) the establishment of the quasi-prime-ministerial position of Chief Executive Officer; (c) an agreement that all senior appointments be based on “parity” between the two sides, as well as merit; (d) recognition of an opposition leader, or “leader of the runner-up team,” by presidential decree (this point was never very clear and seems to have been quietly dropped); and (e) a shared commitment to electoral reform, with the objective that they take place before the – now postponed – 2015 parliamentary elections.
The text of the agreement also contains a timeline: the Loya Jirga is to be convened within two years – this timeframe would expire in late September 2016.
To be able to call a Loya Jirga that has the authority to amend the Constitution, the government first needs to hold parliamentary and district council elections. (1) Eighty-five per cent of all constitutionally prescribed voting Loya Jirga delegates are, directly or indirectly, elected through the District Council and Wolesi Jirga elections. Strictly speaking, the government may be able to get away with inviting current MPs whose mandates have been extended, but it will be very difficult to defend a Loya Jirga without district council representatives, who are supposed to make up almost half of all voting delegates.
However, twenty months after the inauguration of the National Unity Government, it is clear that these timelines will not be met. The electoral reform process has been excruciatingly slow and is set to culminate in a very watered-down version of its original mandate (with changes that focus mainly on who will control the selection of the electoral commissioners – further analysis on this is forthcoming). It is very unlikely that Wolesi Jirga elections will be held this year, with the Independent Election Commission (IEC) in stasis: donors froze most of their funding, the chairperson resigned and the commission is awaiting a renewed selection process. No preparations have yet been made for District Council elections that are supposed to take place for the first time.
As time has gone on, the different, loosely organised opposition groups have stirred. Some of them have openly questioned the government’s legitimacy, while others have indicated they will make up their minds once the government’s mandate had truly ‘expired’ in September 2016. There were rumours that people in the Palace have been looking at ways to get rid of the position of the CEO.
When, on 9 April 2016, news broke that US Secretary of State John Kerry had travelled to Afghanistan (for security reasons the trip had not been widely announced), it looked to many Afghans as if the real purpose of his visit was to either repair the current political arrangement, or to negotiate the creation of a new one.
Kerry’s visit to Afghanistan
The purported aim of Kerry’s visit was to attend the third meeting of the US-Afghan Bilateral Commission, but his visit was clearly a show of American support for the current government. During a joint press conference, he commended the government for its progress and praised the two leaders for “standing together”:(2)
I want to begin by thanking President Ghani and Chief Executive Abdullah for the constructive spirit of the discussions we had today, but more importantly, for the leadership that they are offering to Afghanistan in the context of a unity government. A unity government is not easy; it is difficult. It is an enormous contribution that both leaders have made as statesmen to stand together, despite the fact that they opposed each other in an election, but in the interests of nation to bring people together. And I want to salute the efforts they are making to overcome many years of challenges that have built up, none of which can be solved overnight, all of which require a special kind of dedication and unity to change. And President Ghani is leading the effort to create a new Afghanistan.
There was a brief Q&A session, with time for two questions only, in which both questioners touched on the issue of the ‘expiry’ of the National Unity Government. The first question, by Wali Arian from Tolo News, asked what would happen after the political agreement ended:
Mr. Kerry, you played a role in solving the electoral deadlock and towards developing the National Unity Government. In the next six months, this political agreement is going to reach an end. So do you think for the – what do you think [is] the solution of this? What other option exists?
The US Secretary of State did not speculate on what needed to happen, but instead stressed that the agreement itself had no end date and that the government still had a mandate for five years:
Let me answer it quickly. Let me make this very, very clear, because I brokered the agreement. President Ghani signed it and Chief Executive Abdullah signed it, and I was there to witness the signing, and I had the privilege of joining them in announcing it. There is no end to this agreement at the end of two years or in six months from now. This agreement ends – this is an agreement for a unity government, the duration of which is five years. … [I]n no way does the agreement itself have some particular termination. The constitution has elected a president. The president has agreed to a unity government, and a political agreement was made between Dr. Abdullah and President Ghani for how they would go forward in a unity government. But it is our understanding that that is a mandate for five years and there’s no termination whatsoever in six months.
A second question, by Ershad Muhammad from Reuters, already signalled that Kerry’s previous comments would probably not be enough to settle the matter, when he asked:
Many people among the Afghan opposition believe that [the NUG agreement] does end in two years. Are you afraid by taking that position that the National Unity Government could go on, you might end up with a backlash from the opposition?
Kerry, in response, welcomed the notion of a loyal opposition and stressed:
It’s the people of Afghanistan and the president and his government who will make any decisions regarding where they go with respect to the government. But it’s not specifically terminated within the context of the agreement, and that’s the only point that I’m trying to make.
Reactions to Kerry’s remarks
The opposition groups and personalities, some of whom had already been mobilising around (veiled) calls for the government to step down, objected to Kerry’s comments. These included the former officials and confidantes of former President Karzai; the Council for the Protection and Stability of Afghanistan (CPSA) or Shora-ye Harasat wa Sobat-e Afghanistan, (whose most prominent spokesperson is MP and former mujahedin factional leader Abdul Rab Rasul Sayyaf; other prominent members include former Energy and Water Minister Ismail Khan, former Wolesi Jirga speaker Yunus Qanuni, former Interior Minister Bismillah Khan, current Wolesi Jirga Speaker Ibrahimi and former Interior Minister and Ambassador to Pakistan, Umar Daudzai); as well as the New National Front of Afghanistan, led by former Finance and Commerce Minister and former Leader of the Afghan Milat Party, Anwar ul-Haq Ahadi.
Former President Karzai called Kerry’s remarks a blatant violation of national sovereignty and sensitivities. Speaking at a conference on “The Nature and Prospect of Afghanistan’s Crisis”, he said that no foreigner could represent the will of the Afghan people: “America must know it should not play with our national sovereignty. We became very unhappy and pained in this regard. We do not get unhappy with war, but we get upset over this issue. … They should not force us to confront them.” Former foreign minister and head of the National Security Council, Rangin Dadfar Spanta, who continues to be one of Karzai’s close confidantes and still accompanies him on most of his foreign trips and public events, wrote an article entitled “Abraham Lincoln Democracy and John Kerry Democracy,” where he placed Kerry’s remarks in the context of ‘a superpower’s support for Third World dictators to further its own interests’.
The Council for the Protection and Stability of Afghanistan (CPSA) called on Afghanistan’s partners and friends to act in accordance with international rules and norms, and to base their remarks on the full observance of the country’s sovereignty. CPSA Spokesperson Massud Tarshtwal told AAN that Kerry’s role of mediator and witness “following the scandalous presidential elections” was the only acceptable role he could play and that he should not be allowed to “impose” his views.
Supporters of Umar Daudzai, who is a member of the CPSA but has also tried to assert himself as a leader in his own right, published a statement in his name on a Facebook page called “The Public Relations Office of Muhammad Umar Daudzai.” The statement (which, according to a close aide of Daudzai, “partially reflected” his position) criticised the National Unity Government for “facing such a managerial crisis that it waits for others to decide on the continuation of its term, in such a way that it has led to increased hopelessness and intra-governmental tensions.” It further argued that the government had faced illegitimacy from the outset and that “the people of Afghanistan” wanted a change in the current administration; it stopped short, however, of actually calling for that change.
Ahadi, who was in the United States during Kerry’s visit to Kabul, criticised the US position by saying that “any successful government has to have the support of both the people and the donors, one [alone] is not sufficient.” A previous call for early presidential elections (at the same time as both parliamentary and district council elections), was repeated in a statement posted on 10 April 2016 on the Front’s Facebook page:
It is common in the world that the governments that are formed based on popular vote and transparent elections and that take the helm of state of affairs, if they fail … they morally stand down. It is obvious that the government of so-called national unity has failed in all areas … The government needs to abandon demagogy and put aside time-killing and pave the way for holding early and transparent elections as soon as possible.
Atiqullah Baryalai, a former deputy defence minister, Jamiat-e Islami commander and now frequent commentator on strategic issues, also gave his analysis of the situation:
The US was concerned that the decision and management of the Loya Jirga could take the situation out of its control during the remaining ten months of Obama’s presidency and [for that reason] they wished to keep the status quo.
Baryalai believed that Kerry’s reading of the political agreement (that is no expiry date) had provided President Ghani with an opportunity to undermine his political ally, CEO Abdullah, within the government and among his supporters and to “manage the situation according to his liking.”
Baryalai further alleged that Ghani was hoping that the possible joining of Taleban factions and Hekmatyar’s Hezb-e Islami to the government might help him manage the Loya Jirga. (3) On the other hand, Baryalai said CEO Abdullah sees the American decision “as an opportunity to retain the title of chief executive and to present himself as a flexible partner.”
The Taleban took the opportunity to publish a series of statements on their website in reaction to John Kerry’s remarks, which include the following titles: “Grand Wizard plays the role of Grand Assembly;” “Kabul regime testifies to its own Americanism;” “John Kerry extends term of his corrupt decaying regime;” and “John Kerry further humiliates the surrogate Kabul administration.”
During the weekly meeting of the Council of Ministers on 11 April 2016, CEO Abdullah hit back at critics by making a point of showing surprise over the outcry. He was quoted as having said: “These political forces have not yet taken the position of opposition forces; their views are appreciated. But they have missed a relevant point in the most important agreement that was signed in the political life of Afghanistan and that established National Unity Government,” urging critics to reread the agreement. Although he did not say it outright, he implied that the agreement did not contain an expiry date and that the Loya Jirga timeline was unrelated to the duration of both his position and to the National Unity Government as a whole.
Post-September scenarios
While Secretary Kerry’s remarks were widely seen as a de facto extension of the National Unity Government’s term, the de jure arrangement after the two-year timeframe mentioned in the agreement remains a matter of contention. There are roughly three positions that can be distinguished:
The first position argues that the National Unity Government’s term ends after two years and that its failure to keep to its own timelines should result in the government’s dissolution. This could happen through a traditional Loya Jirga (called for mainly by former President Hamid Karzai and those in his circles) or snap elections (propagated mainly by Ahadi’s front). The Council for Protection and Stability of Afghanistan has not revealed its position yet, in terms of what it might call for once it believes the government’s legitimacy has indeed run out, however it does keep stressing – against what is by now humanly feasible – that the Loya Jirga be held on time. (4)
The second position can be found in circles close to the Palace and was largely formulated by Abdul Ali Muhammadi, the former legal adviser to President Ghani, who lost his job over the Smart City (Shahrak Hoshmand) scandal. This position argues that the elections were held to establish a government for five years, but that, two years on, there does need to be a decision about the fate of the CEO position. In a talk show called Amaj on 26 April 2016, Muhammadi explained that to take this decision “some customary legal mechanism must be found, such as a Consultative Loya Jirga, a referendum, or a political consensus. The government should take the initiative to break this stalemate within these next five months.”
Rumours recently surfaced that advisers to the president thought the two-year deadline could be used to reorganise the government and force out Abdullah as a CEO (for details, see a New York Times report here and an interview with Ahadi here, where he describes how the office of chief executive would be dissolved, with one of the vice-presidents resigning so Abdullah could replace him; his deputies would be appointed as ministers). According to the NYT article, Palace advisers argued that, while the position of chief executive would expire, the president would still have a mandate based on ‘an election that they say was cleansed by a United Nations audit’.
Talking to AAN, however, Ahmad Omid Maisam, the CEO’s deputy spokesperson, called the idea “impossible and impractical,” because, he said, the CEO had received “50 per cent of the popular vote.” It is interesting to note, in this respect, that the IEC on 24 February 2016, suddenly and without any clear explanation, released previously withheld results of the 2014 presidential elections. The results had been widely leaked, but were not yet official. The now officially released results showed that, after the audit, Ghani had received 55.27 per cent of the vote and Abdullah 44.73 per cent.
The third position, as put forward by Muhammad Nateqi, head of the High Commission to Oversee the Implementation of the Political Agreement, is that the National Unity Government – in full – should remain for the full five-year term. This is based on the fact that the election cycle is five years and that the two campaign teams created the joint government based on the people’s votes. Nateqi said he thought it “unlikely that the president would decide to dissolve the office of chief executive, as it would lead to a serious crisis.”(6) Instead, he envisioned a scenario in which the position would be extended until the Loya Jirga was convened, which, according to him, could be done under the current political agreement – similar to the extension of the mandate of the Wolesi Jirga until the next parliamentary elections are held.
This view, which is held by the CEO’s camp, seems to be shared by the largely pro-Ghani High Council of Jihadi and National Parties (Shora-ye A’ali Ahzab Jihadi wa melli). (7) On 8 May 2016, Abbas Basir, head of the Secretariat, told AAN that from the Council’s point of view “it was the people’s vote, not the political agreement” that formed the legal basis for the National Unity Government, and that the political agreement was only a framework for cooperation between the two camps. A failure to deliver on the commitments of the political agreement would not harm the legitimacy of the government, and the CEO, as far as the Council was concerned, could continue to serve beyond the two years. The CEO’s Deputy Spokesperson, Maisam, went even further when he told AAN that “even if the Loya Jirga, when held, did not approve the post of Executive Prime Minister, the CEO would still serve for five years.” (8)
The President’s Office, when asked for its views, gave the regular assurances that the president was committed to implementing the political agreement and that the parliamentary and district council elections would be held and the Loya Jirga convened (although probably with some delays). Shah Hussain Murtazavi, deputy spokesman for President Ghani, said to AAN that the president has the power to assign some of his authorities to others, as he did with CEO Abdullah and Ahmad Zia Massud, now Special Representative for Reform and Good Governance. (It is, however, unclear as to whether this view that the establishment of the CEO position was within the president’s personal authorities, and whether this also means that the Palace thinks he can dissolve the position whenever he wants to). Murtazavi added that when the two-year deadline for the convening of the Loya Jirga had expired, “the president would provide an explanation to the people, in consultation with relevant stakeholders, as to the mechanism under which the CEO would continue.” He did not elaborate on what the mechanism or explanation might be.
Changing not just the government, but the political system
Beyond the wrangling over the legitimacy of the government and the positioning of the opposition that is hoping to step in, lies a deeper discussion: the long-standing wish on the part of the political establishment to institute a parliamentary system.(9) CEO Spokesman Mujib Rahimi told the BBC on 10 April 2016:
Our fundamental and underlying demands have been the changing of the system. We have changed the system in practice from a presidential to a prime ministerial structure. But now, it should be enshrined in the Constitution – electoral reforms must be brought, the Loya Jirga should be convened and the position of the Chief Executive should be promoted to that of an executive prime minister.
Comments on 27 April 2016 by Sayed Aqa Fazel Sancharaki, the CEO’s cultural advisor, however, show that the current system still suffers from the monopolisation of power that those advocating for a parliamentary system hope to address. Sancharaki criticised the president for concentrating all large projects and relevant executive committees under his own authority: “People in ministries complain that they are jobless, as all their work has been transferred to the presidential palace; [they say] ten to fourteen councils have been created and we sit here without work.”
However, to formalise the position of an executive prime minister and to enshrine it into the Constitution, the president needs to form a commission, which, according to the agreement, was supposed to have happened after the inauguration ceremony (“After the inauguration ceremony, the President will appoint in consultation with the CEO by executive order a commission to draft an amendment to the Constitution.”) This has not yet happened. Nateqi, the head of the Commission to Oversee the Implementation of the Political Agreement, suspects that political motives are the reason for the delay, arguing “a change to the political system may go against the grain of the president and his circle.”
(1) According to the text of the political agreement, the National Unity Government agreed to the following, regarding the convening of the Loya Jirga:
A. Convening of a Loya Jirga to amend the Constitution and consider the proposal to create the post of executive prime minister
– On the basis of Article 2 of the Joint Statement of 17 Asad 1393 (August 8, 2014) and its attachment (“…convening of a Loya Jirga in two years to consider the post of an executive prime minister”), the President is committed to convoking a Loya Jirga for the purpose of debate on amending the Constitution and creating a post of executive prime minister.
– After the inauguration ceremony, the president will appoint, in consultation with the CEO by executive order, a commission to draft an amendment to the Constitution.
– On the basis of Article 140 of the Constitution, the National Unity Government is committed to holding district council elections as early as possible on the basis of a law in order to create a quorum for the Loya Jirga in accordance with Section 2 of Article 110 of the Constitution.
– The National Unity Government is committed to ratifying and enforcing a law on the organization of the basic organs of the state and determination of the boundaries and limits of local administration by legal means.
– The National Unity Government commits to completing the distribution of electronic / computerized identity cards to all citizens of the country as quickly as possible.
– The above issues and other matters that are agreed to will be implemented on a schedule that is appended to this agreement.
(2) Although he took great care to praise both men, Kerry did single out President Ghani as “leading the effort,” which may have been carefully negotiated wording. This was also reflected in the protocol. After his arrival, he first met Ghani for about an hour, before Abdullah joined them. After the meeting, Kerry stopped by the Sapidar Palace to see the CEO in his own office, in an attempt to maintain a “balanced” protocol. That such issues of protocol are very touchy is illustrated by Abdullah’s refusal to attend President Ghani’s speech to the special joint session of Parliament on 25 April 2016, after he found out he would have been treated like any other regular senior official.
(3) Baryalai also noted that Ghani had already promised during his presidential campaign that he would convene a Loya Jirga (although he had envisaged it for the fourth year of his presidency), suggesting that the president may be reverting to an original plan. Ashraf Ghani’s campaign manifesto does indeed state:
The tool of change and amendment is integrated in the constitution. … Hence, one of our most essential pledges with regards to the rule of law is that simultaneous with the national assembly elections, we will also run district council elections so that the legal mechanism for change and amendment in the constitution is prepared. For this reason, our specific proposal is to create an authorized committee composed of the relevant and authorized institutions to examine the necessity for amending the constitution. This committee must be given three years so that with profound and comprehensive effort, it collects the articles that lawfully have potential for reform, distinguish them and at the same time, create the conditions for realizing the articles that can pass through executive injunctions. Following a comprehensive examination and national participation in this debate, within four years we can invite the Loya Jirga tasked with amending the constitution to, by making use of its legal right, make decisions about specific matters that need change or amendment and in this manner, once again make the constitution harmonize with the needs and wants of the people.
(4) Speaking at the launch of the CPSA on 18 December 2015 Sayyaf said that, although many views had already been aired, the system should be changed – through the convening of a Loya Jirga, the holding of early elections or the formation of an interim government – the CPSA had sought to pursue the route of legal demands. CPSA member, Yunus Qanuni, stressed that if the amendment of the Constitution and the decision regarding the fate of the CEO was not carried out by a Loya Jirga within a year, “the legitimacy of the government would be seriously questioned,” but he did not spell out what the CPSA would do if the government failed to meet the deadline. Instead, he explained what he said were the Council’s plans for the coming four years: to actively participate in the upcoming parliamentary and district council elections and to introduce a candidate for the next presidential election.
Daudzai’s political office said something similar in a written English statement to AAN on 5 May 2016:
If the NUG succeeds in implementing the commitments made in the political agreement ahead of September 2016, the need for early elections or any other addressing mechanism will evaporate. [But] in the event that the NUG fails to deliver on its commitment, the legal and political logjam and the problem of a dual-headed government will require a solution endorsed by the Afghan people. The Council will announce its recommendation for such an eventuality in due time.
During an interview in October 2015 with Tolo News, Daudzai said, “My advice to President Ghani is to take a bold decision and hold early presidential elections as soon as possible, so there would be a president with clear powers and legitimacy.” He said that if he were President Ghani, he would not wait for another four years to complete the term, but stopped short of demanding that the government be dissolved, stressing instead that he hoped the government would complete its term and not fall apart before then – but, of course, if for any reason, the leadership of the NUG could not complete its term, both the nation and those who felt responsible had to be prepared so they would not be surprised. It was also during this interview that Daudzai characterised his own political position as an “alternative in waiting” (after which, some of his supporters created a Facebook page under the same name.
(6) Sayyaf’s CPSA also said it would not agree with attempts by the president to continue governing without the CEO. According to CPSA Spokesperson Tarshtwal, both the president and the CEO draw their legitimacy from the political agreement, rather than the Constitution. “If the president thinks he derives his legitimacy from the Constitution,” he said, “the Constitution stipulates transparent elections, which did not take place. In the view of the CPSA, the dissolution of one of the positions will automatically mean the end of the other: the president cannot continue alone.”
(7) The High Council of Jihadi and National Parties was established on 29 August 2015 and consists of Jihadi figures such as former chairman of the Senate and leader of the Jebh-eye Nejat-e Melli Sebghatullah Mojadeddi, former vice-president and leader of Hezb-e Wahdat-e Islami Mohammad Karim Khalili, former vice president and special representative of the president for reform and good governance Ahmad Zia Massud, leader of Mahaz-e Melli Pir Sayed Ahmed Gailani, head of Hezb-e Harakat-e Islami Sayed Hussein Anwari, and senior member of Hezb-e Islami Qutbuddin Hilal. In fact, it is comprised of members that had put their weight behind President Ghani in the presidential elections.
(8) The term “Executive Prime Minister” is used in the political agreement. In the context of Afghanistan, the word “executive” often precedes prime minister in political statements to connote the subordination of the post to the presidency; a pre-emptive move to see off claims that the existence of such a post would cause division within the political system.
(9) The debate over the possible introduction of a parliamentary system dominated the Constitutional Loya Jirga in late 2003. Some Uzbek and Hazara delegates even demanded parliamentary federalism, a system that many Pashtuns saw as “a recipe for disintegration.” As reported by Katharine Adeney in her paper Constitutional Design and Political Salience of “Community” Identity in Afghanistan: Prospects for Emergence of Ethnic Conflicts in Post-Taliban Era: “The clincher for this deal was that the Tajiks were also not in favour of a federal state. Although the Tajiks are a minority, as the second largest community in Afghanistan, they are less territorially concentrated than either the Uzbeks or the Hazaras, and thus “focused on power sharing in the central state” rather than on territorial autonomy.” But when it came to the debate on whether to adopt a presidential or a parliamentary system,
Pashtuns and the Americans argued for a presidential system because of the perceived need for a “strong man” to lead Afghanistan. Indeed, Karzai—the Americans’ favored presidential candidate—threatened “that he would only stand in future presidential elections if the Loya Jirga approves the strong presidential system.” The [Constitutional Loya Jirga] split along ethnic lines on this issue, with Tajiks, Uzbeks, and Hazaras opposed to the adoption of a strong presidency, fearing it would exclude them from power.