Update Briefing Asia Briefing N°117 Kabul/Brussels, 23 February 2011 Afghanistan’s Elections Stalemate the Wolesi Jirga rejected the decree on 31 March. Karzai, I. OVERVIEW however, bypassed the lower house, ensuring that the Meshrano Jirga (the upper house) essentially endorse the The prolonged crisis over Afghanistan’s parliamentary decree by voting to take no action on the issue on 3 April. elections has further undermined President Hamid Karzai’s Meanwhile, vetting processes designed to keep known credibility. He is now even more isolated politically than criminals and members of armed groups off the ballot he was after his dubious re-election in 2009. The Wolesi broke down, raising the risk of candidate rivalries turning Jirga was inaugurated on 26 January 2011, following a violent. The Wolesi Jirga elections were thus held against lengthy standoff that exposed sharp political fault lines, a backdrop of heightened political tensions and deterio- which could plunge the country deeper into not just po- rating security. litical but armed conflict. Clashes between the executive, legislature and judiciary over the results of the polls are Absent electoral reform, the result was unsurprisingly a paralysing government and weakening already fragile in- repeat of previous election debacles. As in the August stitutions. Constitutional review is long overdue, and failure 2009 presidential and provincial council polls, violence to implement changes that reinforce the separation of pow- and insecurity created tremendous obstacles for both can- ers will only further weaken the state’s ability to provide didates and voters. Election day violence hit record highs, security or good governance. If public confidence is to be leaving at least 24 dead. Insecurity left wide swathes of restored, the president and Supreme Court must disband a the population unable or unwilling to vote, particularly in special tribunal that was created to adjudicate elections regions where the insurgency has spiked, with many dis- complaints but lacks a clear legal mandate. The new parlia- enfranchised after the last minute closure of hundreds of ment must also immediately place electoral and constitu- polling stations. Systemic fraud, including intimidation tional reform at the top of its agenda. If left unaddressed, and ballot stuffing, was witnessed countrywide, resulting the current political crisis will stoke ethnic tensions and in the IEC ultimately throwing out 1.3 million ballots, an could drive disenfranchised Afghans into the arms of the estimated quarter of total votes cast. The ECC subse- Taliban. quently disqualified 21 winning candidates for electoral fraud, prompting losing candidates – many from Karzai’s By the time Karzai returned to office on 19 November Pashtun political base – to hold street protests and to 2009, the destabilising effect of the flaws in the electoral press their case through back channels at the presidential system was readily apparent. Nonetheless, in the haste to palace. push ahead with an ill-conceived agenda of putting an “Afghan face” on the transition process, international Karzai’s politically calculated capitulation to the demands stakeholders, in particular the leadership of the Interna- of losing candidates prompted a criminal inquiry into the tional Security Assistance Force (ISAF), allowed Karzai conduct of the polls. Days after the preliminary results to hijack the debate inside and outside parliament over were announced on 20 October, the attorney general filed electoral reform and to manipulate the political process. a broad indictment against more than a dozen senior elec- By insisting that the 18 September 2010 Wolesi Jirga (the tions officials and also against dozens of parliamentary lower house of the National Assembly) elections go for- candidates, after receiving information from the ECC about ward, they backed Karzai’s ill-considered wager that an suspected fraud involving hundreds of candidates. The irrational system could somehow produce rational results. Supreme Court appointed a special tribunal on elections in late December. Tasked with investigating electoral fraud The president’s 18 February 2010 decree on the electoral and corruption, the tribunal claimed it was empowered to law was one of many unheeded signs that the parliamen- annul the elections. The newly established Independent tary polls would likely end in disaster if not postponed. Commission for the Supervision of the Implementation of The decree sharply limited the authority of the Electoral the Constitution (ICSIC), reportedly in correspondence Complaints Commission (ECC), increased ambiguity with the president, rejected this presumption but never over the role of the Independent Election Commission publicly announced its position. With the commission’s (IEC) and created confusion over candidates’ right of appeal role as an arbiter of constitutional disputes still unclear, in the event of disqualification. In a rare show of unity, the president was free to seek other, more favourable in- terpretations of the special tribunal’s authority. Afghanistan’s Elections Stalemate Crisis Group Asia Briefing N°117, 23 February 2011 Page 2 On 19 January 2011, at the tribunal’s request, Karzai an- pass legislation clarifying the role of the Independent nounced that he would delay parliament’s inauguration Commission for the Supervision of the Implementation by a little more than a month. The tribunal said it needed of the Constitution and fully defining its competence time to adjudicate electoral fraud complaints. Angered by and authority in relation to the Supreme Court; and the delay, more than 200 newly elected parliamentarians announced the next day that they would defy the presi- repeal the 18 February 2010 presidential decree on the dent’s order and inaugurate parliament with or without him. electoral law and enact wide-reaching electoral reforms Ultimately caving to strong international pressure, Karzai to broaden political participation, including by ration- inaugurated the parliament on 26 January, but continues alising the elections calendar; removing barriers to po- to abuse his authority by retaining the special tribunal. litical party participation; reducing opportunities for Although the tribunal has initiated recounts in several fraud by implementing district delimitation and cleaning provinces, IEC officials announced on 21 February that up the voter registry; clarifying the authorities of the they would not cooperate with the process. The dispute electoral commissions; and standing up a permanent between the executive and the electoral institutions runs electoral complaints commission. the risk of escalating violence at the local level at a time when ethnic tensions have never been higher. II. SYSTEMIC FAILURES The outlook for resolving the crisis, absent meaningful electoral and constitutional reform, does not look promis- The acrimonious 20 August 2009 presidential and provin- ing. It is unlikely that Karzai’s opposition will accept the cial council elections clouded plans for the 18 September special tribunal’s judgments. Nor will the dubiously 2010 parliamentary elections. The polls highlighted numer- elected parliament be viewed as legitimate. Karzai could ous systemic deficiencies and underscored the weakness be tempted to use the tribunal against his opponents, in a of the state institutions that were to ensure fairness and bid to bend the National Assembly to his will. As this brief- transparency.1 ing was published, fourteen election officials had been indicted along with dozens of sitting members of parlia- After nearly two years of debate, parliamentarians voted ment. With the lower house also deeply divided over the into office in 2005 were unable to compromise on crucial selection of the speaker, Afghanistan’s government is in a revisions to the body of laws governing the conduct of the state of near paralysis. The Wolesi Jirga’s call, in a reso- polls.2 The international community repeatedly failed, lution passed on 12 February, for the president and Su- meanwhile, to use its financial leverage to push for mean- preme Court to dissolve the special tribunal, has increased ingful reform, in particular to replace the unwieldy Single the risk of an escalated clash between the three branches Non-Transferable Vote (SNTV) system with a more appro- of government. priate party-based electoral system. Without a robust voter The international community and Afghan leaders must registry, the potential for fraud increased. As Afghanistan recognise the gravity of the current impasse. Karzai must entered its second cycle of national elections since the fall heed parliament’s call to disband the special tribunal. The of the Taliban, the president, the parliament and the inter- Afghan government as a whole must move swiftly to mend national community – the U.S. and the UN in particular – fragile institutions, to initiate substantial electoral reform had done little to advance electoral reform. By nearly and to adopt constitutional amendments to strengthen the every measure, the 2009 polls were deeply flawed. The checks and balances between the executive, legislature vote was marred by widespread fraud, low turnout and and judiciary. Provincial and district-level government violence, the incompetence of presidentially-appointed institutions must be empowered to deliver services to the Afghan people. The president and parliament, with the support of the international community, should: dissolve the special elections tribunal