2009 Presidential and Provincial Council Elections

Final Observation Report

Free and Fair Election Foundation of Afghanistan (FEFA) January 2009

Table of Contents

Table of Contents ...... - 2 - Acknowledgements ...... - 3 - Message of the Chairman ...... - 3 - Executive Summary ...... - 3 - I. To the Government of Afghanistan ...... - 4 - II. To the Legislative Organs ...... - 4 - III. To the Independent Election Commission ...... - 5 - IV. To the Election Complaints Commission ...... - 5 - V. To the Civil Society Organizations ...... - 5 - VI. To the International Donor Community ...... - 6 - Introduction ...... - 6 - I. Background on FEFA ...... - 7 - II. FEFA's Mission ...... - 7 - III. FEFA's Performance during the 2004 and 2005 Electoral Processes ...... - 8 - Elections 2009 ...... - 8 - I. Contextual Analysis ...... - 9 - a. Political Environment...... - 9 - b. The Security Environment ...... - 10 - c. National Political Debates: Pre and Post Election ...... - 12 - II. Election Administration ...... - 14 - a. Independent Elections Commission (IEC) ...... - 15 - b. Electoral Complaints Commission (ECC) ...... - 18 - III. Observations ...... - 22 - a. Other Observer Organizations ...... - 22 - b. FEFA Role and Observation ...... - 27 - c. Pre-Election Day Period ...... - 33 - d. Election Day 2009 ...... - 66 - e. Tabulation Process ...... - 88 - f. Complaints and appeals ...... - 90 - g. Preliminary Results Announcement ...... - 98 - Recommendations ...... - 100 - I. To the Government of Afghanistan ...... - 102 - II. To the Legislative Organs ...... - 103 - a. Election Law ...... - 103 - III. To the Independent Election Commission ...... - 104 - a. A New Law on the Structure and Authorities of the IEC ...... - 105 - b. The following regulations should be amended on priority basis ...... - 106 - c. Voter Registration ...... - 106 - d. Election Media Commission ...... - 107 - IV. To the Election Complaints Commission ...... - 107 - a. Election Complaints Mechanism ...... - 107 - V. To the Civil Society Organizations ...... - 107 - VI. To the International Donor Community ...... - 108 - Annexes...... - 109 -

- 2 - Acknowledgements

The Free and Fair Election Foundation of Afghanistan (FEFA) expresses its appreciation to the many government and electoral officers, political activists and political party members, candidates and Election Day workers, who cooperated with our observers, facilitated their work and provided them with the opportunity to develop a clear picture of the electoral process.

This process was made possible through a grant from UNDP ELECT. FEFA is grateful to UNDP ELECT staff for their support and coordination.

This report acknowledges the hard work and commitment of 7137 FEFA observers, who served the cause of ensuring a transparent and credible electoral process through provision of regular and detailed information despite security threats.

We dedicate this report to the developing civil society in our country. More importantly, we dedicate this effort to those families who lost their loved ones during the electoral process. We may not reduce their pain by doing so, but at least attempt at eternalizing the memories of the forerunners of the movement towards building a democratic Afghanistan.

Message of the Chairman

Considering the volatile circumstances under which these elections were conducted, the people of Afghanistan, those who despite serious threats, risked their lives and came out to vote deserve to be congratulated for this achievement. We stand in grief by those families who have lost loved ones during this process and urge our people not to give up. We emphasize the approach which treats this election not just as a technical event; it is critical to acknowledge the challenges it entailed as well as the bravery of the people of Afghanistan and vibrant campaigns amidst threats, abductions, murders and suicide bombings. The elections were flawed; the process however, was noble and opened up new opportunities for the strengthening of democracy.

Executive Summary

Afghanistan's second Presidential and Provincial Council Elections were held on August 20, 2009 and were administered by the Independent Election Commission of Afghanistan in six phases including the Voter Registration, Candidate Nomination, Campaign Period, Election Day, Tabulation and Result Verification, and Audit and Recount.

The Free and Fair Election Foundation of Afghanistan (FEFA), observed all phases of the election process through the deployment of 7137 observers across Afghanistan, with the objective of ensuring a free, fair and transparent electoral process and promoting public participation in the election through greater awareness and information dissemination, thus help in building public confidence in the process and support the cause of democracy in Afghanistan.

The 2009 election, as an exercise of democracy was conducted amidst serious security crisis. Lack of security not just hindered the smooth running of the election process from the administrative point of view, but also affected the scale and extent of activity of national and international observer organizations. To begin with, FEFA could only cover 60% of the country. Observers' inability to reach to all areas in Afghanistan was one of the factors affecting the transparency of the process as a whole.

Furthermore, administrative, technical, communication and logistical problems faced by IEC and the ECC added to the questions of lack of independence of both the entities, thus paving the grounds for electoral offences, irregularities and violations to be committed by many including IEC and ECC local staff, senior government officials, members of Parliament, candidates and their supporters.

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However, people's participation in the process demonstrated their determination towards institutionalizing democracy in Afghanistan despite years of conflict, continued security crisis, lack of access to information and knowledge about democratic systems and practices, a centralized system of governance with over 7 years of weak public service delivery. This was obvious from the fact that in many places people returned to the polls on Election Day, a demonstration of commitment and indication of the positive impact of years of investment by the international community.

We have another election ahead of us in a year's time. It is critical for Afghans and the international stakeholders to realize this and be prepared for the up coming elections with short term and long term plans. The observed cases of electoral offences call for serious efforts aimed at developing mechanisms required to address these issues if we want to have a transparent, accountable, credible and acceptable process in the coming years. FEFA hereby recommends the following:

I. To the Government of Afghanistan

• Improving the security conditions for candidates, supporters and voters, in particular women through strengthening Afghan Security Forces. • Take strict and immediate action against government and security officials observed to have interfered with the election process. • Ensure the independence of the media outlets in particular the RTA. • Select Commissioners of the IEC from a list provided by the civil society and condition to a vote of confidence by the Parliament. • Facilitate the vetting process through a review and rebuild of the lists of Illegally Armed Groups, and strengthening of the transitional justice and judicial accountability programs. • Ensure level playing field for all candidates. • Conduct national census in accordance to facilitate the development of a sustainable voter list. • Support elected representative bodies at all levels, including holding elections for all the entities that the constitution requires (district councils, municipal councils, village councils, and mayors). • Support women and enhance their participation at all levels. • Identify district boundaries as a priority program.

II. To the Legislative Organs

• Replace the Single Non-Transferable Vote (SNTV) system with a system combining the SNTV and the proportional representation system. • Ensure that the election laws have provisions supporting the development and implementation of mechanisms of accountability and transparency. • To the extent possible under the electoral law, ensure that the electoral calendar provides for enough time between two elections to avoid unnecessary expenses and maintain public interest in the process. • Ensure that legal provisions support the internationally admitted principles of free and fair election. • Develop a new law on the structure and authorities of the IEC aimed at enhancing the independence of the IEC and provision of timely information to media, observer entities and general public. • Specify the date of establishment of the ECC: ECC must be established early to ensure that the ECC offices are well functional and staffed before the complaints period starts. • Develop a special law on the structure, duties and authorities of the ECC in order to enhance further independence of the entity from executive pressures.

- 4 - • Consider modifying the electoral law, following at least two or three additional electoral cycles and continued improvement of the electoral processes, to Afghanize the ECC, with the commissioners and staff Afghans and internationals serving as advisors.

III. To the Independent Election Commission

• Develop effective and binding internal evaluation and monitoring mechanism. • Based on the principle of Right to information publicize the records of assets and liabilities of candidates and details of their campaign expenses. • Ensure the neutrality of election administering staff. • Consider women's access as a cross cutting theme while making plans. • Build the capacity of IEC officials. • Develop an early and closely monitored recruitment plan for out of reach areas. • Make public those who committed electoral fraud and introduce their names to the ECC or the judicial system. • Raise IEC staff capacity to quicken observer registration. • Consult the civil society organizations and other entities while making plans and developing procedures. • Amend the regulations on candidate expenses, and conditions of candidacy on priority basis. • Review all electoral rules and regulations in close consultation with the civil society. • Strengthen the internal legal capacity of the IEC. • Replace the manual system of voter registration with the computerized voter registration (CVR) system piloted in 2007. • Enhance the powers of Election Media Commission by giving it the authority to sanction media channels and their management.

IV. To the Election Complaints Commission

• Ensure the neutrality of the ECC staff. • Publicize the process of adjudication of complaints and its findings. • On the basis of Paragraph 5 of Article 52 of the Election Law, take the initiative in addressing issues that fall within ECC bounds of authority, such as investigating fraud without waiting for the filing of formal complaints. • Have a separate funding and technical support source than that of the IEC. • Accurately identify the severity of electoral offences and categorize them with corresponding sanctions and penalties. • Take legal action against those who have committed fraud, or refer cases of fraud to the judicial system.

V. To the Civil Society Organizations

• Conduct extensive civic education especially amongst youth, women and rural populations. • Develop better coordination at the civil society level, especially in observing electoral processes. • Support national observer organizations to enhance the effectiveness of their recommendations by lobbying electoral or government bodies to respect the work and findings of observers. • To further support democratic processes and governance develop strategic and long term programs aimed at strengthening the electoral system and in order to play a more significant role in monitoring the performance of the government along side the Parliament and sub national elected councils.

- 5 - VI. To the International Donor Community

• Support the strengthening of the Afghan Security Forces. • Ensure neutrality, and demonstrate it. • Support the civil society and national observer organizations • Avoid a short term approach to supporting democratic processes; have long term plans. • For those international organizations that support electoral processes, keep the civil society support programs distinct from support programs for the election administering entities. • Support the vetting process through contributing to the information on the illegal armed groups. • Support the development of political parties, and national and local representative bodies. • Support initiatives aimed at enhancing women and youth participation in the electoral processes. • Maintain pressure on government and electoral institutions to uphold standards and speak out against violations. • Support programs of voter education and civic education implemented by the Afghan government and the civil society organizations. • Pay special attention to efforts aimed at building the capacity of female election observers and increasing their numbers. • International observer organizations should develop their plans in cooperation and coordination with national observer organizations.

Introduction

The Free and Fair Election Foundation of Afghanistan (FEFA), registered with the Ministry of Justice as a civil society organization, observed the 2009 Presidential and Provincial Council Elections through the deployment of 7137 observers all over Afghanistan. The objective of the observing mission was to ensure a free, fair and transparent electoral process, promote public participation in the election through greater awareness and information dissemination, help build public confidence in the electoral process and election administering bodies, rightly act as a monitoring entity, along side other civil society organizations and observe the process on behalf of the people of Afghanistan, and consequently promote the development of a democratic system in the country.

This report, which is based on the compiled and analyzed data as well as the tallied and analyzed check lists' reports, serves a couple of purposes. Primarily this report is meant to record the observations made by FEFA of the 2009 Presidential and Provincial Council Elections. Secondly, based on the observations made, the report aims at highlighting political, legal and administrative gaps in the electoral process and puts forward its recommendations and ways out to address those problems. Thirdly, this report serves the cause of civic education and public sharing of information and ensures the due right of Afghan people to information, as protected by the Afghan Constitution.

Based on the purposes that drive this report, it targets primarily the election administering bodies such as the Independent Election Commission of Afghanistan and the Election Complaints Commission, the Government of Afghanistan in general, the people of Afghanistan as the sole beneficiaries and right holders of the exercise of election, civil society as a whole, media and broadcasting groups, as well as other national and international entities who play a direct or indirect role in the election process.

This report, which sums up the challenges and opportunities that our second ever Presidential and Provincial Council Elections faced, is meant to offer a set of lessons learned from this exercise in relation to their impact on coming electoral processes in Afghanistan. This report, at the end, gives a set of short term and long term recommendations, targeted at entities as above, and calls on all government, civil society, media and other national and international entities to pay due attention to the

- 6 - lessons learned from these elections and be better prepared for our second ever Parliamentary and first ever District Council elections in 2010.

It should not be undermined however, that despite the entire range of problems, flaws and challenges that this process faced, the peoples’ participation in the elections was a very positive step forward. This showed that the people of Afghanistan are not only interested, but also committed to making progress towards an institutionalized democratic system. This however, does not relieve the institutions in charge of this process of their responsibility to improve their processes, mechanisms and performance.

Election is not a one time event. As mentioned above, we must be well prepared for the coming elections in 2010, 2011, and beyond. This means that the election process is not over. Unless we make a serious effort at putting in place the mechanisms required to address irregularities observed in the 2009 election and ensure a transparent, accountable, credible and acceptable process, there is no assurance of improvement in the coming elections. We, as a civil society organization, call on all entities involved in the election process such as the IEC, the ECC, the Electoral Media Commission (EMC), the Afghan government, and international stakeholders to make a serious note of the issues raised in this report.

I. Background on FEFA

The Free and Fair Election Foundation of Afghanistan (FEFA) is the biggest and most experienced domestic election observers group in Afghanistan. Established in 2004, FEFA has successfully observed all of Afghanistan’s recent electoral processes. The Foundation is registered with the Ministry of Justice as a civil society organization that aims at:

• Observe electoral processes in order to ensure fairness and transparency • Promote democratic development in Afghanistan • Promote public participation in electoral processes • Help consolidate public trust in electoral process and democracy. • Advocate for better legal frameworks for electoral process • Stimulate public discussion on issues of electoral processes and democracy; • Assist the election administration bodies in maintaining their autonomy and advancing their capabilities.

II. FEFA's Mission

FEFA’s mission is to guarantee the integrity of the election process through: • Providing our people, through non-partisan groups a venue for their effective and productive involvement in the elections to help and ensure that the process is free, fair, peaceful and orderly; • Promoting the citizenry’s role through raising their awareness and giving them a sense of responsibility over the process; • Informing them about importance of voting and selecting the candidates and of political parties that really represent the nation’s interest; and • Advocate for political parties to be public in character, therefore, fully accountable to the people; • Providing our people other relevant venues to participate in the promotion of good governance, transparent, and accountable government and active citizenship.

- 7 - III. FEFA's Performance during the 2004 and 2005 Electoral Processes

FEFA, as an observing entity, deployed 2310 observers on the Election Day in 2004's Presidential Elections. These observers were present in 101 districts, 1962 polling centers and 3088 polling stations around the country. FEFA was the first observing entity to make a note of problems such as the low quality of the indelible ink and report it to the Joint Electoral Management Board (JEMB).

During the 2005 Parliamentary Elections, FEFA fielded local observers in all 34 provinces. At the district level, FEFA observers were present in 219 districts around the country. The number of polling stations FEFA observed totaled to 3723. On the 2005 Election Day, 7446 observers represented FEFA throughout Afghanistan.

Despite being a novice organization in 2004 and facing a range of issues in sectors such as transportation, communication and budgeting, FEFA carried its operations with notable success. During this pilot phase of observation, FEFA managed to build a strong team, and train not just its own observers , but also those working with entities such as the Afghanistan Independent Human Rights Commission, Afghanistan Youth Leaders Association, Afghanistan National Workers Union, Afghanistan Teachers Union, Afghanistan Youth Association, Journalists Union, Training Human Rights Association (For Afghan Women), Ghadeer Future Makers Organization and Afghanistan Research and Evaluation Unit.

As a civil society organization, FEFA supported the cause of information dissemination and civic education through a couple of radio broadcasts. These efforts not only served as means of giving awareness to general public, but also as means of encouraging greater public participation, one of the main pillars of a successful electoral process. FEFA submitted timely and factual observation notes and reports to the Joint Electoral Management Body (JEMB) as well as to the "Election Evaluating Committee". It is worth mentioning that FEFA reports served the basis of the decisions made by the Panel.

At the end of the 2004 and 2005 elections, FEFA came up with a series of recommendations which included a revision of the electoral process, capacity building of the election and law enforcing agencies' officials, launching civic education programs aimed at educating voters, legal obligations and rights of candidates and building permanent election centers as means of bringing about better coordination and ensuring better access to and knowledge about election centers and electoral processes. Unfortunately, many of these recommendations were not adopted.

Elections 2009

Holding the third ever election is a major challenge in any country with an under-developed democratic system. The people of Afghanistan demonstrated high level of commitment during these elections. In spite of numerous challenges, this process represented collective dedication to the cause of democracy and was nothing less than a major step in Afghanistan’s progress towards building a civil and democratic government. Despite flaws, all players, be it the candidates and their campaign teams, government institutions such as the IEC and law enforcement agencies, media outlets, and civil society organizations, played key roles in shaping the political environment in a way where many people had the opportunity of exercising their political rights.

Legally speaking, the Constitution of 2004, the 2005 Electoral Law, the Political Parties Law of 2003 and a number of decrees and rules of procedures and regulations issued by the IEC led the 2009 Presidential and Provincial Council Elections. President Karzai attempted at improving the legal framework by issuing the decree on Non Interference in the Electoral Affairs of Elections in May 2009. The Electoral Complaints Commission, on its part, came up with a series of rules and regulations that further helped strengthen the legal backbone of the election process.

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The system of the Presidential Election is a majority two round system, where the whole country is one constituency, where as the provincial council elections take place in 34 provincial constituencies; the election system of Single Non Transferable Vote (SNTV) applies to the provincial council elections. Candidates can register themselves as independent candidates or a representative of a political party.

The Afghan Constitution protects political and civil rights of women, which is more on paper and less in practice; their participation in all spheres of life is limited and lack of access to education leads to their lack of representation in state machinery as well as greater manipulation by campaigns that might not offer them any better opportunities than they have now.

Lack of security affected the participation of everyone, but more seriously that of women. Of the 41 Presidential candidates only two were women and 333 women competed for seats on the provincial councils, making only 10% of the total number of candidates, a little better than the 2005 provincial council elections where women candidates made only 8% of all candidates; the 25% quota however, ensures greater allotment of seats to women in the provincial councils. This is further ensured through the provision that does not allow seats reserved for women to be given to male candidates incase of unavailability of women to occupy the seat.

Despite numerous attempts and contrary to the provisions of the Electoral Law of the 2005, the level playing field could not be created or maintained for the candidates and women candidates suffered even more whose lack of access to resources was more limited. Lack of security affected women candidates more than it could possibly affect men. This was despite the positive but insufficient attempt by the Ministry of Interior to provide every provincial council female candidate with a bodyguard.

Administrative failure to recruit sufficient female election staff led to further discouragement of women voters. This added to the already existing cultural and security impediments and made it even more difficult to fight the illegal trend of male members of family voting on behalf of female members. This exercise not only deprived women of the right of political participation, but also provided greater space for fraudulent manipulation by political groups.

I. Contextual Analysis a. Political Environment

Afghanistan's first Presidential, Parliamentary and Provincial Council Elections were carried out through a joint effort by Afghans and UN in 2004 and 2005. This is what makes the 20 August 2009 Presidential and Provincial Council Elections administered by the IEC, a Government of Afghanistan institution, very unique.

Afghanistan has been a conflict area for decades now, so long that today's over 70 percent of Afghan population comprising of youth under the age of 25 remember nothing but war and destruction; peace is an unseen creature, of which they only have a vague image. The impact of these destructive decades is so strong that it seems it is going to take at least double the time for infrastructural and mental wounds to heal. Perhaps, one of the reasons why, in spite of numerous efforts of national and international players, it is impossible to avoid democracy and democratic processes like elections being affected, is the widespread damage caused by decades of conflict.

Conflict had a huge impact on the election process. The people of Afghanistan were caught in the middle of two options, one to participate and other to not, first to cause them short term damage with fatal affects, second to impact their lives in the long term. Afghan citizens were not only threatened by the Taliban but also shown practical attempts aiming at disrupting the elections. These attacks, some targeting polling centers increased as the Election Day came closer and citizens continued to suffer.

- 9 - On the Election Day itself rocket attacks and explosions targeted polling centers and government offices. However, Afghans were not deterred and many came to vote.

The 2009 Election was Afghanistan's second ever Presidential and Provincial Council Election, administered by the Afghan institutions for the first time. This election, besides being a very significant process, was an exercise for the people of this country, an exercise to learn, know and practice. For this generation of Afghans, democracy as a concept is a phenomenon not experienced before; Afghanistan is yet to experience a true democratic system, its development, failure and re-emergence.

Afghanistan has had, for ages, a centralized system of governance, with not much authority going into the hands of the general public. This authority also includes the right to elect the leaders. Decades of war resulted in a generation of leaders born out of military or financial power and social status. So the whole leadership phenomenon has not gone through a gradual development process, but has been a consequence and a requirement of incidents and urgencies.

Afghan educational institutions, where the growth process of an individual, to a leader or to an ignorant follower for that matter should begin, are not governed democratically. Political activism at the university level is not allowed and students, whether at the school level or at the university level, unlike other countries of the world, do not go through processes such as electing their class representatives, team leaders, or sports heads. These exercises, no matter how minor, help students of today, who are leaders of tomorrow, develop an understanding of democratic system of governance, accountability, transparency, and get into the habit of respecting others' view point, be tolerant, do not assume to have the power to decide for others and do not allow themselves to be corrupted by power even if they have it. Understanding this gap helps realize the significance and uniqueness of the election process in Afghanistan.

Election as a process of democratic development is of great importance in terms of the impact that it is going to have on the future of this country. Today it might be very easy to lure an Afghan family living in a rural area to vote for a candidate chosen by their tribe leader, but tomorrow and after a series of these exercises, it is not going to be this easy. The tribalism that dominates our system of governance currently can be deterred only through continuous exercise of democratic processes. It is obvious that the initial attempts at such processes will always be a mix of failures and successes. One must not be dismayed by the gaps, disappointed by the failures; failures should rather act as a motivation for further hard work. What is important is to note the trend of increased successes and decreased failures and not vice versa.

So what it means to hold elections despite all problems? We believe that it is a solid demonstration of commitment, dedication and determination of no one, but the people of Afghanistan to change today for a better tomorrow; it is nothing but the amazing ability of our people to be hopeful for future despite the darkest ages of history that they have left behind; it means a step forward in the right direction; it surely is a trend with increased successes and decreased failures and not certainly vice versa. And therefore it indicates that the efforts made by Afghans, with the generous help and endeavors of the international community and the people of those countries have not gone in vain.

Failures, on the other hand, call for continued determination and efforts at all levels. It was clear that the election, as a process or as a step will not be perfect. However, this should not lead to setting the bar too low for the sake of just getting the process at the cost of losing public trust in the system. b. The Security Environment

The security environment and the provision of adequate security before, after and on the polling day have been the most talked about topic throughout the election phase. Security has been rightly the major most concern, having the greatest impact on elections as a process and as means of ensuring and

- 10 - demonstrating public participation and exercise of a due political right protected by the Afghan Constitution.

FEFA observations and analysis indicate that the Taliban deployed a systematic, extensive and coordinated effort to disrupt the process between 6:30-9:00 am through barrage of rockets in different parts of the country. This trend, which was observed as an organized effort between 6:30-9:00 am, was followed by sporadic attacks throughout the day. Media reported on some systematic attacks on voting centers in some parts of the country as well. These attacks had a two fold impact, first affecting the extent and nature of public participation and second leading to the closure, suspension or delays in the working hours of some of the polling centers.

It is worth mentioning that in some parts of the country, as soon as the attacks were stopped, the Afghan people sought to re-open polling centers and went to vote. This in itself was a marked indication of the peoples’ commitment to the process, which is worth making a note of. Our data shows that the provinces affected by the attacks included Kunduz, Baghlan, and some cases in Kabul where centers were closed and opened again, Zabul, Logar, Ghazni, Wardak and Kandahar.

The inconsistent security environment caused a number of irregularities as well. Intimidations, whether as a result of direct military attacks or intimidations from the Taliban directed at voters and candidates, cruel punishments such as cutting of fingers of two voters in Kandahar which was witnessed by FEFA observers or direct intimidations on the Election day by commanders or influential candidates at the local level for provincial councils are all instances of means leading to irregularities. In some instances, these provincial council candidates have deployed their people around polling centers and directly and indirectly forced people to vote only and only for them. Or the candidates themselves were present and asked people to vote for them or their candidate of choice.

- 11 - • Insecure Areas in the 2009 Election

Grenade and rockets attacks on the Election Day, directed at polling and city centers emerged as a major form of disruption in many parts of the country. These attacks continued sporadically throughout the day. FEFA also received isolated reports of suicide bombings and gunfire in the vicinity of polling stations as well as reports of the manifestation of violent threats directed at the voters by the Taliban in several parts of the country. c. National Political Debates: Pre and Post Election

As experienced, this election generated a political debate in the country on a number of issues of national significance. The pre and post election period witnessed numerous debates organized through media or held at schools and civil society centers, which set an all new trend of political opposition in the country. Afghanistan witnessed leaders being questioned for their past decisions and acts, something unseen in the distant past of this country.

The pre election debates, which surrounded issues such as the election date, term of the president, his Presidential powers while being a candidate himself and use of State assets in the election campaigning resulting in the absence of a level playing field, led to the development of a culture of political debate, - 12 - imparted awareness on issues of national importance to people and provided a platform and an opportunity for expression of opinion to everybody in particular the youth.

The constitutional crisis started almost in the beginning of 2009 when in January of the same year the Afghan government decided to hold the election on a later date of August 20. Then, the government cited security problems as well as weather issues. However, this move created a constitutional crisis, as Karzai’s term as president was set to end in May 2009. In such situation, his resignation from the presidency would have created a massive power vacuum, which was very dangerous considering the volatile spring and summer that Afghanistan was going through, while his holding onto power was unconstitutional.

As a result, the decision finally came for him to remain in power until the new president is elected. This situation while on one hand was an advantage as he was the incumbent while running for the post, on the other pushed the country into a constitutional crisis of unique nature. The lower and upper houses of the Parliament were divided and the law of the country was interpreted in different ways, none of which provided a way out of this crisis.

Some sides debated for changing the date of elections back to April or May. However, since all the western governments supported the August 20 date and were not happy if the date was changed to an earlier date, and considering the security, cost and logistic issues, the possibilities of such a decision being made or widely supported even if made was out of question.

FEFA maintains that the decision to have President Karzai remain in office after May 2009 had no legal justification under the constitution. However, there were also no provisions either in the constitution or in law that clarified what should happen in regard to the position of president in the event of a delayed presidential election. Therefore, the decision to allow Karzai to remain as president was a political one versus a legal one. FEFA recommends that either a legal or constitutional statute be developed that would define who should act as president when presidential elections are delayed past the date called for in the constitution. We also believe that a major problem was IEC's process and method of decision making on this issue, carried out with total exclusion of civil society organizations, while the decisive meeting on this issue was held with the participation of IEC officials, the President and Jehadi leaders, none of whom had legal backing and credibility for such a decision.

Another important of the pre election debates was the one surrounding the absence of a level playing field, which to a great degree was indebted to the constitutional crisis and the way it was addressed. Limited activity by political parties, the disadvantageousness of the electoral system for parties, and a centralized system of governance supported and protected by the Constitution make it close to impossible to defeat a candidate who is also the incumbent president. While every other public officer had to resign from his/ her position to be able to run as a candidate, this rule did not apply to the incumbent president who had the power to appoint all major position holders at national and sub national levels. This situation led to the absolute absence of a level playing field and therefore an imbalance of opportunities for the candidates.

The ability to use State assets was an added factor to lack of level playing field, and perhaps the reason why incumbent Karzai's opponents emphasized him stepping down from his position at the end of his term on 21 May. The weak political parties and their inability to organize masses add to this issue and make it even more possible for State resources to influence in favor of the incumbent. This concern was not so misplaced, as the Presidential Decree of May 2009 calling on all government departments to abstain from political campaigning in favor of a particular candidate failed to secure its initially intended goal.

This absence of a level playing field was significantly visible with regards to the campaign finances, despite all the provisions of the Electoral Law and the newly developed IEC regulations. One of the

- 13 - reasons that rendered these regulations ineffective was the sanctioning power of the entity issuing such regulations which was limited. For instance the absence of complete financial reporting is termed to be an "electoral offence", with no punishment beyond a ban that will apply on future election standings until such time as records are supplied, where there is no certainty to the ability of IEC to observe these measures.

The post election debates covered issues such as the election credibility, nature and quality of election administration by the IEC, the impartiality of the electoral staff, violations to the standard norms set by the IEC, election results, vote recount and result verification.

Since the vote recount and result verification led to the decision of the IEC to hold the second round of elections, the post election scenario witnessed serious debates about the possibility of holding the second round of elections and IEC's ability to deliver the election again with reduced rates of voter fraud.

As per the law, the top two candidates compete with each other in case no one secures more than 50% of the votes in the first round of elections. While IEC had announced that it is completely prepared to conduct a second round of elections and has enough financial resources at its disposal, there were arguments made against holding a run off mainly due to the deteriorating security and weather factors as well as absence of any mechanisms to prevent fraud and electoral irregularities in the second round. The later was stated by Dr. Abdullah, the candidate with the second highest vote total, as the primary reason for deciding against participating in the run off, leading to the cancellation of the run off and the declaration of Hamid Karzai as President of Afghanistan for another five years.

One interesting strand of debate here was the claim of the rest of the presidential candidates towards having a role to play in the run off as a candidate. Their claim was based on the fact that the invalidated votes belonged to both the top candidates namely Karzai and Dr. Abdullah, and therefore since both were alleged to have committed fraud, all other candidates had a right to participate as well and therefore and in actuality the election be held all over again. However, this was not entertained mainly because legal authorities do not permit but two top candidates to compete against each other during the run off.

II. Election Administration

As per the Article 156 of the Afghan Constitution, The Independent Election Commission (IEC) took the lead in the 2009 Presidential and Provincial Council Elections. IEC's efforts were supported through Electoral and Legal Capacity for Tomorrow (ELECT), a project of the UN Development Program.

The Independent Elections Commission (IEC) deserves to be congratulated for successfully managing to set up polling stations and supplying material in most parts of the country. IEC's performance matched expectations in the light of the logistic and administrative considerations. However, our observers also observed that around 1500 polling stations around the country opened late, with an average delay of about one hour.

Around 650 planned female polling stations did not have female staff, and this had a considerable impact on female voter participation. For example, our observers reported that in Urozgan only 6 out of 36 planned female stations opened.

The issue of indelible ink and malfunctioning hole punchers exacerbated the problem of multiple voter registration cards obtained by many and under-age registration.

- 14 - As per IEC figures, there were 6519 polling centers with 26,983 polling stations, where 140,000 polling staff were deployed. Of these polling stations, 14,829 were for male voters, 11,029 for female and 1756 were for Kuchis. 36% of these staff constituted of women.

Security continued to hamper the operations as expected. For instance in Zabul Province, no such center was opened for prisoners or hospitalized patients. Since ensuring the security of polling centers in some areas was close to impossible, the lists of the polling centers were made available a day before the Election Day. This affected not just the voters but also international and national observers' ability to plan their activities.

Also, the complicated IEC procedure to change the location of the polling centers created problem for the voters and the observers. This procedure required people to bring the signature of the District Governor and Head of Police, however due to lack of coordination between these two at the local level and between Ministry of Interior and the Independent Directorate of Local Governance (IDLG) at national level, there were many instances of agreement on a location by the District Governor and lack of such agreement by head of Police, or vice versa. There were also cases of lack of agreement of local police officials despite the presence of signed letter of agreement by the Head of Police and District Governor. a. Independent Elections Commission (IEC) i. Structure

The IEC is a board of seven commissioners led by the Chairman and a Deputy Chairman. This board makes policy decisions and administers the technical preparations of the IEC Secretariat. IEC is headed by a Chief Electoral Officer, and has 34 provincial offices divided into eight regions with 400 permanent staff of which there are 230 core staff and 170 support staff.

Independent Election Commission (IEC) Structure

IEC Support Coordination Chairman, Deputy and Seven Members of IEC

Exclusive Chief Executive Officer CEO Support to CEO

Operational Deputy Administrative Deputy

CIT Department Public Outreach Administration

Department Department Department Department Department Department Department Department

Operations Relations Planning Training External Support Legal Field

Provincial

Offices 34 IEC

- 15 - Appointments

All commissioners of the IEC are appointed by the President and the procedure for appointment, which is not defined by law, is not a consultative process, which leads to less transparent appointment of commissioners. This fact has led to a perceived political leaning towards the President, which came up to be a major shadow damaging the legitimacy of the elections.

The IEC regulation on temporary election staff gives the qualifications and conditions based on which temporary staff may be recruited by the IEC Secretariat. Article 4, Para 2 of this regulation lays down a number of conditions for this practice. These conditions include "absolute transparency in the announcement process, receiving applications, making shortlists, giving tests, interviewing the nominees, and choosing the best among the applicants", "ensuring that recruitment is not based on personal pressure or private relations", and "following all the processes of recruitment and obtaining relevant documents".

This regulation clearly states that the recruitment of "leaders of political parties and candidates", "close relatives of candidates in the area in which they will be candidates and where the staff could bring an advantage to a candidate", "persons with political connections whose impartiality can be questioned", "persons whose recruitment as election staff has been banned by the ECC", and "first level relatives of the permanent election staff such as spouse, brother, sister, son or daughter" is not permitted as electoral staff.

Article 9 of this regulation lays great emphasis on undertaking of impartiality and secrecy by election staff. However, there have been reports on lack of impartiality of IEC staff which are discussed in detail in the relevant sections. ii. Performance

Dictates of the political/security environment

One of the technical problems not addressed efficiently was the handover of the election administering responsibility from the international community to the IEC as an Afghan Institution. This process suffered from budgetary and staffing issues as well as inadequate facilities and lack of sensible direction.

During this process, the IEC suffered from lack of interest not just from the donor side but also from the Government of Afghanistan side. This was despite the ambitious benchmarks given in the 2006 Afghanistan Compact. According to the Voter Registration and Elections 2004 and 2005 overview carried out by the UNDP, the reason for the international lack of interest could have been the $15 million overrun of the 2005 polls, or the over extended and uncertain counting, complaints, adjudication, and certification period, which occurred this time around as well.

On the staffing side, of the current seven commissioners of the IEC, four are new appointees. Not just this, the election 2009 is a first ever experience for most of the IEC staff. There were taken a couple of steps towards building the capacity of the IEC staff but there was certainly lack of more sustained efforts with a more accurate planning for the challenges ahead in an election so complicated and vast as the elections 2009.

Lack of Internal Evaluation Mechanisms

The IEC lacks an internal control and monitoring unit to evaluate the performance of IEC staff. Unfortunately, this internal observation control mechanism did not exist.

- 16 - Lack of an internal evaluation and monitoring mechanism hindered IEC's ability to curtail partiality and biased approach of IEC local staff. This attitude, among other factors, led to the late opening of 1500 (1258 as reported by SMS) polling stations and continued problems of punch machine leading to almost 2000 cases.

Besides, IEC failed in ensuring that necessary measures protecting against fraud are in place. Since ECC and other observer organizations cannot play a role in preventing fraud, it was for IEC to shoulder this responsibility. To begin with IEC lacked a properly protected and safe chain of command for handling and transferring sensitive election material. FEFA noted several instances of ballot boxes taken to locations other than designated or even counted in places other than the polling stations. In one such instance the counting of votes took place in the residential house of the head of polling center (2907026) Hamidullah located in Shahre Safa of Zabul Province.

Another major measure to protect against fraud is presence of observers. FEFA noted several instances of forced evacuation of observers from the center or transfer of ballot boxes and other sensitive material to locations where the process continued without the presence of any observers. Examples of such acts are given in sections to come. Conducting a proper reconciliation process and if required audit of the results are other measures that could expose fraud.

Corrective Capacity

IEC displayed a measure of corrective capacity on Election Day. At 08:30 Am on Election Day, FEFA reported to IEC on the problem of indelible ink and the punch machine. FEFA observers reported that in 15 provinces including Ghor, Nangarhar, Kabul, Takhar, Bamyan, Faryab, Hirat, Balkh, Laghman, Parwan, Paktia, Sar e Pul, Daikundi, Baghlan and Logar the punch machine did not work and the ink could be easily removed. Even after our early reporting of these problems, the reports received after 10am indicated the presence of ink issues in 18 polling stations in Kabul, 25 in Parwan, 24 in Ghor, 30 in Badghis and less than 10 polling stations in each Ghazni, Paktia, Laghman, Uruzgan, Nimrooz, Farah and many other provinces. However, FEFA also observed that in many other stations, IEC officials had begun resolving the puncher and ink problems. This showed that FEFA's attempts at informing IEC of problems were of some use and that the IEC was able to take timely measures to improve the process, even if imperfectly.

Questions of impartiality and incapacity

FEFA observers reported 1014 cases of lack of impartiality of IEC staff in provinces of Nimroz, Paktia, Khost, Laghman, Parwan, Nangarhar, Badakhshan, Farah, Ghazni, Zabul, Daikundi, Takhar, Kunduz, Bamyan, Jawzjan, Ghor, Kapisa, Helmand, Balkh, Hirat and Faryab. Instances among many include campaigning of IEC Officials and armed state officers in favor of Karzai in polling center number 2604037 and 2604032 of Chekhansoor District of Nimroz Province, where in the latter they were forcing people to vote for Karzai; and campaigning of IEC official Abdul Qadir in favor of Dr. Abdullah in polling station number 320 of Saighan District of Bamyan Province.

Furthermore, FEFA observers found that irregularities and violations of the law in favor of a candidate took place in many polling centers. Such instances include IEC officials' campaigning and encouraging of people to vote for provincial council candidates Ghulam Muhi U Din, Haji Roh Gul and Haji Abdul GhafoorZoi in polling center number 2601001, 2601004 and 2601009 of Zaranj city of Nimroz Province and forcing of voters into voting for presidential candidate Ashraf Ghani Ahmadzai and Sarwar Ahmad Zai by an IEC official named Amanullah in polling station number 0911190 of Ahmad Abad District of Paktia Province.

Our observers also noted that in polling center number 02110005 of Mehtarlam city of Laghman Province, IEC officials were giving many ballot papers to some of the voters at the same time and they

- 17 - continued doing so despite objections raised by the observers present on the scene. In another instance, the polling center was established in the residential house of a provincial council candidate named Abdul Aziz in Alingar District of Laghman Province despite the objections of the candidate agents. In these instances, IEC officials in Kabul did not solve the problems identified by FEFA officials.

Another example of misuse of authority and lack of impartiality of IEC officials was observed in female polling center number 1019440 of Batikot District of Nangarhar Province, where an IEC official named Palwasha from 11am to the end of the polling day voted on behalf of all women voters.

There were a number of factors which combined together gave rise to serious questions regarding the capacity and impartiality of the IEC. As mentioned IEC's lack of internal evaluation system, its lack of corrective capacity, centralized system of appointments and on top of all Supreme Court's decision against the original Election Law which required for the parliament approval of IEC commissioners seriously affected the performance and the image of the IEC.

What was most critical here was the vivid and obvious contradiction that existed between the name and the spirit of IEC. Contrary to what it was required to be as its name suggests, the IEC chairperson and commissioners were all appointed by the President thus centralizing the key structural decision of IEC in the hands of one person, who happened to be simultaneously the incumbent president as well as a presidential candidate.

Therefore, the widely spread perception of dependence of the IEC on the top notches of the government of Afghanistan was inevitable considering the circumstances. One logical conclusion that was being made commonly was that IEC senior could not possibly disfavor the presidential candidate who is the incumbent president with the power to sign their payrolls.

Individuals who are imprisoned and their sentences are less than 5 years are able to participate as candidates, and individuals with sentences of less than 10 years are able to participate as voters. Unfortunately IEC had no plan to ensure the participation of eligible voters in prison, which demonstrated the inability of the IEC to ensure the provision of equal opportunity for all. This was while FEFA observed in prisons located in many areas such as Kabul, Nangarhar, Hirat, Mazar e Sharif and others where IEC developed and implemented such a mechanism for inmates who wanted to participate as voters in case of whom the Election Law places the condition of less than 10 years of sentence. In response to our request for information on this issue, one of the IEC representatives told FEFA that interested prisoners should have approached IEC as IEC is not responsible for approaching each and every prisoner.

These issues added to the array of administrative and logistical problems that IEC faced in different areas and different phase of the election over shadowed the entity in totality, the direct effect of which was the questioning of the credibility of the election process and the legitimacy of the new government.

A significant factor in the flawed performance of the IEC, and its primary advisor the UNDP ELECT program, that must be noted was the late finalization of funding for both entities by the international donors. This delay led to severe challenges for both the UNDP and the IEC in operationally, administratively, and technically, which may have contributed to some of the issues that arose in the 2009 elections. b. Electoral Complaints Commission (ECC)

Following the 2005 elections, recommendations were made regarding the establishment of a competent body tasked to adjudicate complaints regarding results as well as electoral offenses. FEFA also, in its 2005 election observation report strongly recommended a much stronger ECC to be established at least a year to six months prior to the Election Day, which unfortunately did not happen.

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Law gives the right to launch a complaint to any person, be it voters, observers or whoever with a legitimate interest in the process. The ECC as per the 2005 Electoral Law has the capacity to act on complaints received as well as take initiatives on its own even in the absence of a registered complaint on that issue. ECC can also reject the candidacy of candidates that do not qualify, disqualify violators in the election administrative entities for up to 10 years, warn and impose a fine of up to $2000, decide regarding a re-count of votes, ascertain the validity of ballot papers, and refer violators to legal prosecuting entities in case of sufficient proof for further criminal investigation.

Therefore the ECC is an ad hoc body, supposed to be created only for electoral periods and is required, by law, to complete its work within 30 days of the certification of election results. The decisions taken by ECC are final and enforceable.

ECC began its work in mid April 2009. While ECC faced a number of issues from the beginning, its hybrid structure with a mix of national and international members led to further delays in the process as the UN announced its appointees in April 2009, leading to absolute absence of ECC at provinces and districts level during the challenge period. Therefore, this delay while on one hand was a failure of UN SRSG to appoint international commissioners, on the other was due to the ECC’s inability to spend all of its resources in a timely manner due to the ECC’s late start and its strict accounting procedures.

AS per the statements given by Maarten Halff, an Election Complaints Commissioner, in June 2009, there were roughly 270 staff during the campaign period starting on June 16. He further added that despite all recruitments, the professional staff still had no accommodation in provinces outside Kabul.

Despite numerous above and below explained constraints, the ECC did significantly better in improving its regulatory and operational framework and adjudicate complaints as compared to the previous elections. This is because the ECC, besides the rules and regulations, also developed complimentary guidelines. This helped ECC in better demonstrating impartiality while taking decisions regarding complaints received by it. i. Late Establishment and Early Closure

The Electoral Complaints Commission (ECC) despite strong recommendation of FEFA and other observer groups after the 2005 election was established late in the process. The problem is that there is legal ambiguity with regards to the date of establishment of this entity. While the ECC, remaining impartial, made historical decisions and attempted at improving its operations and regulatory set up to address complaints, it still could not address most of the electoral issues as was expected by Afghan civil society.

The late establishment of ECC in itself was an administrative delay and caused a number of irregularities such as the absence of fully operated sub divisions of ECC during the candidate nomination period and partly during the campaign period. Besides, as per IEC procedures and timelines, checking the accuracy of the provided candidate information was not possible prior to registering of the prospective candidates, which led to the challenge period being the only time for addressing failures to comply with legal requirements for nomination, including the vetting of candidates. This heavily burdened the ECC to accomplish a complicated task within an extremely short time frame.

ECC opened its central office only 5 days before the start of the challenge period, and failed in opening its provincial offices, and therefore used IEC provincial offices to provide awareness on its procedures. FEFA observed that many people in provinces lacked sufficient information on ECC working methodology and did not have enough confidence in IEC offices which were already alleged to lack impartiality.

- 19 -

For instance, a provincial council candidate Shukria Aseel from Baghlan Province had complaints with regards to her votes and had approached FEFA for help. When FEFA guided her to register a complaint with the ECC, she refused to so and said: "I have complained to the IEC, but I know nothing regarding ECC being an entity entitled to receive complaints… and what difference does it make if the complaint is registered with the IEC." Her statements show that she lacks awareness on entities entitled to receiving complaints and she does not know that IEC and ECC are distinct organizations with different scope of work.

After the suicide attack on the UN guest house in Kabul on October 28, 2009, the ECC slowed down its activities and in contradiction to the Paragraph 7 of Article 52 of the Election Law ended its work for the 2009 election before the final certification of results. The mentioned article states that "the ECC shall discontinue its work no later than 30 days following the certification of results". However, ECC stopped working when the preliminary results of the provincial council elections of some provinces were yet to be announced. This early discontinuation of work deprived ECC of the chance to address the complaints with regards to the preliminary results of provincial council elections. For instance, the discontinuation of work of ECC came before the results of Nangarhar Province were finalized, which led to violent reactions in parts of the province. ii. Structure and legal/operational mandate

The structure and operational mechanisms of ECC were in a way which didn’t help enabling the commission to fully address public's lack of trust in the system. The location, office structure and atmosphere of the ECC offices in some areas was not apt for maintaining confidentiality where complainants felt hesitant in submitting oral or written testimonies due to fear of intimidations and threats.

The case of 4 District Field Coordinators (DFC) from Mohammad Aagha of Logar is relevant to this issue. They (requested to remain unanimous) approached FEFA on May 16, 2009 with a complaint against IEC. They told FEFA that they had protested against the unprofessional and illegal attitude of head of voter registration center during the VR period in Logar (August-September 2009) who used to give numerous voter registration cards to under age voters or kept many cards for himself. As a result when they approached IEC for work during other phases of the election process, the head of the polling center had refused to recruit them. When FEFA asked them why they haven’t approached ECC, they said that ECC has no offices of its own in provinces. They further added that they were hesitant in approaching ECC Head Quarters because they thought ECC and IEC are closely linked to each other and in case their names leak out to IEC and reach the IEC Logar office then they could be in trouble in their province.

The close relations of Maulawi Mustafa Barikzai one of the commissioners of the ECC with Karzai, also affected ECC's credibility. However ECC's performance maintained its independence. Also, the on time correction of the hiring procedure of ECC proved to be very helpful; as per the new procedure, ECC took initiative in identification and recruitment of its provincial staff instead of having them be introduced by government entities.

However, the fact that ECC failed in opening its provincial offices during the challenge period, and used IEC provincial offices instead, added to this issue, as people could not have confidence in IEC offices that were already under the allegations of lack of impartiality. Lack or complete absence of female staff at locations such as Baghlan, Yakawlang District of Bamyan Province, Baraki District of Logar Province, Kohband and Tagab District of Kapisa Province, many polling centers located in Khost Province such as those located in Army Hospital, Civil Hospital and Yaqubi Mosque, and provinces of Nuristan, Helmand, Farah, Nangarhar, Paktia, Paktika, Uruzgan, Badakhshan, Ghazni and

- 20 - Ghor made it more difficult for female complainants to use this opportunity. All of this combined led to lower than expected complaints received and fewer candidacies' disqualification.

There were two major sources that ECC could approach for validation or invalidation of facts and allegations related to candidate vetting. These included the Supreme Court and an entity composed of representatives of the Disbandment of Illegal Armed Groups (DIAG) Commission, Ministry of Defense, Ministry of Interior, UNAMA and National Directorate of Security headed by Mr. Masoom Stankizai. Cases with allegations of relation to Illegally Armed Groups were referred to the joint entity and cases of conviction by a court of law were referred to the Supreme Court in order to validate or invalidate received complaints. These sources were not always effective in addressing ECC requests.

It was not the fault of these sources alone though. The first chain of complaint addressing process was IEC's responsibility to share with ECC an accurate list of all candidates with their identity and contact details, which was not "accurate" enough. During our meeting with ECC commissioners on December 16, 2009, they shared this problem with us, which was caused due to lack of clarity in the lists such as inaccuracy of telephone numbers, lack of clarity of names, and insufficient details collected from the candidates or complainants.

They mentioned the particular case of two disqualified provincial council candidates Jabbar from Nangarhar and Yahya from Logar who were wrongly disqualified and by the time the problem was realized, it was too late for their names to be re-included in the list. In this case, they said that when the very brief details of Jabbar and Yahya were sent to the DIAG Commission, from amongst many cases with the name of "Jabbar" that they had, they picked the one with relations to IAG and sent back to the ECC which came to be wrong. So cases of this nature, as they stated, was partly because of inaccurate lists sent by IEC and partly due to careless attitude of the DIAG Commission.

For instance the DIAG list which was supposed to be the only source of proving or disproving the candidates' links to armed groups, could not provide this information in a satisfactory way.

One such instance was the case of two provincial council candidates Jabbar from Nangarhar and Yahya from Logar, who were disqualified based on the names found in DIAG list that were similar to their names and despite the fact that the rest of their information did not mach the DIAG list, in spite of the provision of sufficient information to the ECC by the candidates could not be included back in the approved candidate list as the ballot papers were already printed. In the case of Akbar Bai, a disqualified presidential candidate too, ECC had failed to, as per ECC rules of procedure, inform him on time. iii. Lack of Initiative

Throughout the electoral process, FEFA, as its role suggested regularly provided ECC with verified reports based on the observations made at different levels. On the basis of these reports ECC could take initiative without waiting for officially registered complaints.

However, contrary to what was expected of ECC, the entity did not use its power to take initiative on certain issues without receiving or waiting to receive complaints on it. This power was of greater significance considering the issues that people faced if willing to complain, such lack of access to legal information and awareness on complaint procedures, and serious threats to their life and property.

FEFA shared with ECC numerous reports in ECC standard format. These reports were regarding the candidate registration process, candidates with relations to the Illegally Armed Groups, campaign period and Election Day. When we approached ECC to gather information about their treatment of FEFA reports sent to them in standard format, ECC refused to share any information on that and said

- 21 - that ECC cannot share details of what particular cases were taken actions upon. They further added that ECC used FEFA's reports as a document to support complaints received by others, if any at all. iv. ECC media engagements

ECC was an important entity in maintaining and ensuring the transparency of the electoral process. The people of Afghanistan, the civil society as well as the international community relied heavily on ECC for this purpose, and expected to receive valuable information from ECC through media.

However, ECC was mostly reluctant in coming forward and giving information to people on its structure, roles and responsibilities, and the electoral process through media. The need for ECC to come forward and inform everyone through media was felt badly, while ECC remained hesitant in using media as means of disseminating information to people.

For instance, FEFA observation of ECC's attempt at providing information regarding the recount and audit process reveals limited flow of technical information for public consumption. While TV and radio discussions on this process covered the political aspects of this process vitally, they lacked enough discussion on the technical procedures involved in the audit and recount. Though the ECC held a number of sessions with journalists, held interviews, and sent fact sheets to the media, they did not provide a full description of the technical details of the adjudication and audit processes. This was despite the fact that elaboration of the technical aspects could have been helpful in gaining public confidence, proving public awareness on such issues and strengthening the election process as a whole.

III. Observations

The presence of national and international observers during the election process is of critical importance. Their presence, while on one hand prevents fraud and ensures greater transparency, on the other encourages greater public participation through building their confidence in the process. The presence of neutral observers positively affects the interest level of general public in the electoral process. National and international observers played a key role in the electoral process and their presence had a major positive impact. This was despite decreased levels of observer participation due to security problems in over 30% of the country. a. Other Observer Organizations

IEC accredited a total of 2972 local and international entities to observe the Election Day procedures, leading to 281446 identity badges to be given to observers of which 61951 were female and 219495 were male observers. The table below gives the statistics of the 2009 election observers as per the IEC:

The latest statistics of observers who take part in 2009 Elections (IEC Website)

No Type of Entity No/Entity Observers/ Agent/ Media Female Male 1 Provincial Council Candidates 2672 169709 36222 133487 2 Presidential Candidates 14 92897 21103 71794 3 International Observers 30 1106 108 998 4 Domestic Observers 21 9228 3758 5470 5 Domestic Media 51 638 126 512 6 International Media 149 609 152 457 7 Special Guests 4 261 86 175 - 22 - 8 Political Parties 31 6998 396 6602

Total Observers 2972 281446 61951 219495 i. Civil Society Organizations

The Afghan Civil society aided the development of the democratic process in Afghanistan through contribution to the transparency of the electoral process. Approximately 220,000 civil society organizations' members and candidate agents had received official accreditation enabling them to observe the elections.

The Afghanistan Independent Human Right Commission (AIHRC), through joint efforts with the UN Assistance Mission in Afghanistan (UNAMA) monitored and published reports on violations of civil and political rights during the electoral process and pin pointed a number of issues where such violations were evident. The AIHRC also, along side other civil society organizations, carried a number of programs aimed at giving awareness on human rights. These programs which were delivered through seminars, workshops and media statements targeted for the most part, Afghans with access to limited education.

Also, the Afghanistan Civil Society Forum (ACSF) which is a network of many civil society organizations played a major role in imparting civic education at all levels. In the area of monitoring women's participation and their situation from a general perspective, the Afghan Women Network (AWN) and UNIFEM were very active. And FEFA provincial partners played a major role in coordinating the process of introducing local observers to FEFA.

While FEFA's capacity to monitor the electoral process, both from the quality and quantity perspective has improved, and FEFA could be more visible and active this year, a comparison of Afghanistan's first Presidential Elections held in 2004 and this election shows that civil society organizations as well as media had to operate in a more restricted environment this year. It is clear that not enough space was provided by the IEC and UNDP ELECT to observe the electoral process as compared to the previous elections.

For instance, civil society organizations' hands are tied with it comes to monitoring media performance with a view to correct it. One of the reasons here is the Supreme Court’s decision based on removing the draft Media Law's provision requiring Parliament's approval of the head of the state media, RTA. This decision affected the ability of monitoring entities such as the media commission or the civil society in general.

Furthermore, this year civil society organizations were not given enough support by international donors to maximize their role in imparting civic education. During the voter registration process, donors mostly refused to fund public awareness projects through Afghan civil society groups. Donors requests for larger, joint proposals made it difficult for civil society organizations to respond successfully and therefore, most civic education and voter education programs were implemented by the IEC itself. FEFA itself missed the opportunity to observe the first phase of the voter registration due to a lack of timely funding.

This approach to funding civic education by the donors reduced the space for action and role of civil society. CSOs could have played a vital role in helping civic education reach remote sections of the country, where the IEC was not present. This affected people's participation in the election process. While in 2004 huge funds were given to CSOs for voter education and public awareness.

FEFA believes that the support of civil society organizations given to national observer entities can enhance the effectiveness of the recommendations of the national observer entities given to the IEC,

- 23 - thus helping reform the process positively. It is vital for recommendations aimed at reforming electoral laws to be supported by the civil society, if we want them to be accepted and implemented.

Furthermore, developing strategic and long term programs by civil society organizations aimed at strengthening the electoral system, can ensure their own sustainable presence even after the electoral period reaches to an end. Such attempts can increase their effectiveness and role in running public awareness programs and campaigns aimed at reforming electoral laws and regulations. Also, based on the experiences of civil society organizations of other countries, Afghan civil society organizations can also play a significant role in monitoring the performance of the government along side the Parliament and sub national elected councils. ii. Role of Media

Media entities in Afghanistan include government media outlets and private media channels. Afghanistan currently has almost 20 private television channels, over 100 radio channels and 7 news agencies. Considering the lack of provision of electricity services to all areas in Afghanistan, and high levels of poverty in the country which leaves a majority of people unable to buy television sets, radio comes up to be the most well accessed, popular and therefore important medium of communication across the country. Since literacy rates are shockingly low in Afghanistan, television follows radio in terms of importance and general public access to it.

In order to regulate the conduct of the media, the Electoral Media Commission was established as per the Election Law of 2005 mandated to gauge complaints regarding media and their coverage of the electoral process as well as violations to the established rules and rules of procedures. Also, in accordance with the Electoral Law provisions, the IEC developed the Code of Conduct for Media and the Electoral Media Commission issued the Code of Conduct for State-Run Media, both aimed at maintaining just, balanced and equal access for all candidates. The Electoral Media Commission published and presented its media monitoring figures during weekly held press conferences.

EMC however, could not manage to perform as expected and planned. Lack of authority to enforce decisions, lack of power to sanction, short term mandate which placed serious time constraints on the commission and limited its span of authority, and last but not the least, lack of cooperation and coordination between the EMC and the Ministry of Information and Culture placed serious restrictions on EMC’s performance and ability to rightly act as a more effectual regulatory entity.

Media and journalists performed extremely well during the electoral process, despite lack of sufficient access to the required governmental information and absence of security in some areas of the country.

While the performance of state run media was disappointing, a number of positive steps were taken by private media channels. These channels broadcasted live or recorded political debates and roundtables with the presidential candidates and therefore provided minor candidates with a platform and opportunity to voice their programs and future plans to the general public, and as a result were given an opportunity to be covered by media at national level.

These programs broadcasted from major television and radio channels were very popular with almost every Afghan and international having a stake in the elections. These programs were keenly watched and listened to all over Afghanistan and by just about everyone, be that a political activist or a taxi driver. The impact of these programs was huge. They not only, for the first time in Afghanistan's history, introduced the culture of debate and discussion between political competitors, but also spread very useful information and awareness on the electoral process, the requirements of candidacy and nomination as well as the concept of peaceful debate contrary to war and armed opposition.

- 24 - Private media entities also broadcasted reality shows where young male and female students competed against each other and the one with the best program and ability to present was offered prizes. These shows while on one hand provided the youth in Afghanistan with a platform to speak, and in an indirect attempt say what they expect of presidential candidates to offer them, on the other hand, introduced a set of standards that any individual, backed by a political party or not, should possess or develop in order to be a legitimate presidential candidate.

Considering the constitutional provision that calls for elected Mayor and Municipal Councils, the currently on air program called "The Best Mayor" is another example of setting public service standards. This and other such programs are not just increasing popular awareness but also warning the prospective candidates of low qualifications or weak commitment to service delivery.

The performance of media was not completely flawless though. While there were numerous instances of media entities favoring this or that candidate, what both the state run and the private media channels missed was committing quality time and content to the issues of voter information and civic education. Besides, print media mainly covered major candidates or candidates of their choice, with the only exception being the Weekly Kabul which provided a paragraph on 6 candidates every week.

Another area where media performance was relatively weak was the coverage provided to women candidates, who received almost no coverage and issues concerning women's rights. Almost all candidates talked of providing "equal" or "increased" opportunities for women to prosper and have a say and share in the governance system, however serious attention was never paid to this issue. iii. International Observer Organizations

As experienced in Afghanistan, active presence of international observers is of significance because it encourages greater voter participation, it can prevent election offences and violations especially those committed by IEC officials, and it helps strengthen the pool of observation findings thus leading to stronger appeal for reforms in future processes.

With this purpose in mind international observer organizations registered themselves with the IEC and observed the process. FEFA analysis of international observers' performance shows that they had problem fulfilling this tri-faceted role.

Considering the widespread cases of irregularity and violations the numbers of international observers was not sufficient. The significance of their work increases especially as international observers are in a good position to objectively observe the process and report on it. However it is ideal to have international observers from countries with no or less political stake in Afghanistan as an attempt at increasing election transparency.

EU commission was one of the major observer entities during the 2009 election. Our observers noticed the presence of EU 164 representatives in 17 provinces including Kabul, Badakhshan, Badghis, Baghlan, Balkh, Bamyan, Faryab, Ghor, Hirat, Jawzjan, Kandahar, Laghman, Nangarhar, Paktia, Paktika and Samangan. The 22nd August, 2009 press statement of this entity issued two days after the polling day stated that, "despite operational shortcomings and some institutional flaws, the Independent Election Commission generally functioned efficiently, adhering to its tight timeline in implementing electoral operations." However, after the findings of the national observers showed greater levels of electoral problems, the tone of the EU statements changed as well. The press statement of August 26, 2009 stated, "… the process is far from being completed and the final results of these elections will be known only when they have been certified by the competent authorities, as enshrined in the Electoral Law… In the context of this insecurity, over-zealous and unscrupulous supporters may have indulged in fraud, to a greater or lesser degree… In view of this, the repeated claims of massive victory by one or another candidate in the first round, are not credible.

- 25 -

Asian Network for Free Elections is another entity who managed to observe the election process with 50 observers in 12 provinces including Kabul, Panjsher, Kunduz, Mazar e Sharif, Jawzjan, Badakhshan, Takhar, Parwan, Baghlan, Samangan, Sar e Pul and Faryab.

National Democratic Institute had a significant role to play with a total of 100 observers being present in the provinces of Kabul, Bamyan, Kapisa, Parwan, Panjsher, Balkh, Sar e Pul, Samangan, Faryab, Jawzjan, Kunduz, Takhar, Badakhshan, Baghlan, Nangarhar, Laghman, Hirat, Kandahar and Khost, Democracy International observed the process with 87 observers in 34 provinces and while International Republican Institute observed the process in provinces of 34 with almost 300 observers. The OSCE which comprised of a team of 20 electoral experts based in Kabul who studied various aspects of the electoral process. While some limited field visits took place, the main focus of the work was on national structures.

While international observer groups were relatively more in numbers than the previous elections, they came to Afghanistan fully prepared and managed to assign some of their observers to the provinces, however, they had reduced numbers of personnel and observers in the field, mainly due to security issues. The coverage of observer teams of international NGOs, diplomatic missions and UNAMA was severely affected by lack of security and therefore, they could not play a major role in observing all phases of the election.

There were instances where international observer teams could not have physical presence at the voting centers and instead gathered information through telephonic contact with candidate agents and local observer teams. One instance of limited coverage was the case of Democracy International Observers in Zabul, where they were confined to the PRT premises for the whole Election Day.

From the total 20904 polling stations observed by FEFA on the Election Day, locally trained and hired representatives of observer teams were seen in 1063 polling stations. FEFA observers in provinces of Kabul, Parwan, Hirat, Balkh, Paktia, Paktika, Kunduz, Nimroz, Faryab, Ghor, Maidan wardak, Daikundi, Nangarhar, Jawzjan, and Badakhshan shared their information with international observer organizations such as NDI, UN, EU Commission and ANFREL through telephone. On the other hand, if they attempted at having physical presence in a polling stations, their heavy armored cars affected the whole site.

Security concerns were part of external factors that hindered a more effective international observer role. There were also some internal factors such as lack of sufficient knowledge about Afghanistan, lack of familiarity with election procedures in countries like Afghanistan and high expectations that made their job even more complicated. In FEFA’s conversations with national observers for international organizations, they noted that the check lists and questionnaire forms prepared by international organizations were lengthy, complicated and thus could not be administered by their local observers with ease.

No matter how limited their presence was, they cooperated with local observer groups to a great extent. FEFA in particular would like to thank entities such as the Democracy International, National Democratic Institute, European Union, ANFREL and OSCE for their support and cooperation throughout the process.

International observers played a major role in observing the process of announcing the preliminary results. This was because the results were being announced through the IEC website and the result sheets gathered by candidate agents were also accessible, which could easily be compared. Also, most international observers in particular the EU Commission, based on international standards, termed some of the polling stations' results announced by IEC suspicious.

- 26 - b. FEFA Role and Observation

Despite restrictions FEFA tried and used media as means of advocacy, civic education and information dissemination during the 2009 election.

The Free and Fair Election Foundation for Afghanistan (FEFA), as a civil society foundation, based on its deployment strategy, deployed observers during all phase of the electoral process and regularly gave out statements. FEFA observed the electoral process covering all its phases and regularly reported to the ECC directly. Besides, in instances of lack of immediate response from ECC, FEFA reported through media, which consequently spread the news throughout Afghanistan and at the international level.

FEFA sent regular reports to the IEC, and ECC. 3 reports covering the campaign period, 4 reports on the Election Day only were sent to the ECC. One report on the candidate nomination period and one on the voter registration period were also shared with the ECC. These were in addition to the telephonic communication of reports to the ECC and IEC such as the reports given to the IEC on 08:30 am on the Election Day regarding the issue of punch machines and indelible ink, which was followed by immediate IEC corrective action.

FEFA approached media where its reports sent to the IEC and ECC were not addressed sufficiently. Besides, considering the responsibility that FEFA as a civil society organization has, it approached media with the aim of informing the greater general population of Afghanistan, as well as the international stakeholders, whose ability to monitor all areas of Afghanistan was affected due to security threats.

FEFA held a number of press conferences and gave out press statements which were based on its observations and findings from the fields. For instance, FEFA held press conferences and gave out press statements on July 7 regarding the ever increasing electoral violations during the campaign period, on August 6 regarding the findings of the electoral campaign on August 20 and 22 regarding the Election Day, on September 8 to mark the end of the tallying and counting process and announcement of preliminary results, and on September 12 calling for preliminary results to be considered preliminary and subject to adjudication.

In addition to press conferences, FEFA officials took part in 55 interviews and roundtable discussions conducted by national and international radio, TV and print media. In total FEFA had 45 national and 10 international appearances of which 16 were live broadcasted. Of these media appearances 25 were with radio channels, 27 with TV and 4 with print media. These electronic and print media appearances focused on debates and discussions on issues such as campaign, election problems, role of IEC, the challenge period, final candidate lists, the voter registration process, participation of women, role of international observers, regulation on campaign finances and media impartiality. These programs were aired by almost all print and electronic channels of Afghanistan including Daily 8AM, Daily Nukhust, Radio channels such as Killid, Arman, Azady, Nawa, Salam Watandar, Nawa, Radio Free Europe, and TV channels such as Lemar, Tolo, Aryana, Noor, Saba, Noorin, and Nega.

The credibility of the Election Process depends solely on the participation of people, as a sign of their belief in the electoral system and its legitimacy. FEFA, as a civil society organization, realized the significance of its role to encourage greater public participation in the election through building public trust in the process. Therefore, FEFA decided to observe and report on the voter registration, campaign and Election Day events and be visible throughout the process. Through this presence and accurate and timely reporting on violations to the Electoral Rules and Regulations, FEFA deterred fraudulent efforts aimed at supporting one or the other candidate.

- 27 - For FEFA, election was a process rather than a technical event. As a process it was the first time that Afghans were conducting their own elections, where there was on one hand serious lack of national unanimity with regards to elections being the right step forward, but on the other an understanding that it was one of the many steps towards re-building this nation. FEFA, through active engagement, not only registered its own commitment, but also encouraged Afghan citizens to lend their hand in support of the process.

Before we proceed to the findings and observations made by FEFA, it is important to understand the prism through which we looked at the election. We believe that the election was a part of a larger process towards revitalization of this country, and therefore should be viewed not just as a technical event but from and through the context, considering the on-going clashes, the rising insurgency, limited access to polling stations and above all, the capacity of the IEC to deliver on the Election Day. However, we did not ignore the technical aspect of the elections and observed the conduct of the candidates and their supporters from a technical perspective and reported on it.

In addition to these on the ground observers' findings, our provincial debriefings indicated additional discrepancies that we reported to the ECC immediately. 450 of these violations were extremely serious but all of them remain anecdotal because of the violent context and existing war in some provinces and threat of retaliation in others. Due to these risks, FEFA did not further investigate these problems and instead referred them to the ECC for it to review the cases in depth.

From the Security perspective, the overall context was extremely volatile. Our security reports indicate a high level of insecurity and lack of access in many of the provinces. The fact that despite fear, intimidation and apathy defining the participation of citizens, the participation rate of approximately 3.5 - 4million voters eventually casting their votes is in itself a major achievement and provides some level of credibility to the overall process. i. Coverage overview

FEFA devised a three phase deployment strategy for the 2009 Presidential and Provincial Council Elections. In April 2009, sixty eight Long Term Observers (LTOs) were trained and appointed in 34 provinces around the country. Twenty seven of the LTOs were female. The LTOs were tasked with preparing for the deployment of district level observers, observing the initial process such at the Voter Registration (VR) and Candidate Registration (CR) processes.

- 28 - Districts Covered by FEFA in

the 2009 Election

During the first week of August, the second phase of the observer deployment strategy came into effect when 400 district level LTOs were trained and appointed. A hundred and sixteen of the district-level LTOs were females. In this phase, FEFA covered 249 districts across Afghanistan. The district level LTOs actively observed the electoral process in areas under their coverage and reported back to the FEFA headquarters. These LTOs were also tasked, together with FEFA partner organizations, to identify, recruit and train E-day observers.

In total FEFA trained 7368 observers, who were all volunteer observers and were not paid any salary but their transport and food expenses on Election Day and during their work period. (231 of the trained observers did not show up on the Election Day, reducing the number of observers to 7137). From the initial group of 7368, 400 of them have observed the 2009 electoral process since the outset. These long term observers have been with FEFA during the voter registration period, the campaign period, the Election Day, and remained with FEFA during the remaining part of the process unfolds. This looks like language from your old report, as it sounds as if the election hasn’t happened yet. 6968 individuals joined the 400 long term observers for Election Day observation. Around 2454 of the total number of FEFA observers were female.

On the Election Day, two staff from the FEFA Head Quarters were accredited for the Tallying Center and the Media Center. We completed the rehearsal of the Election Day Reporting Mechanism by mid August 2009 and were ready with the SMS reporting scheme. As per this mechanism, four teams of reporters and data entry assistants and analysts were connected via phone and internet to 34 FEFA representatives around the country. Besides, our staff continued to regularly monitor local media and communicate with relevant institutions such as IEC, ECC and other observer groups. In order to avoid - 29 - any delays, our senior officials maintained close contact with media as means of information dissemination.

FEFA deployment strategy in the provinces was based on a number of factors. The first was the existence of reasonable security allowing safety of movement, safety for holding gathering and for carrying printed material. The security situation was determined based on our experience from the campaign period.

The second factor was the number of voters; we focused on areas recognized as reasonably well populated on the basis of the Voter Registration statistics. The third was the potential for serious political competition between candidates which could be determined based on ethnic issues and observations made during the campaign period. The last factor influencing the deployment strategy was the existence of sufficient capacity for conducting observation such as existence of strong team or a partner organization.

Male Observer:

Female Observer:

We divided the provinces into four categories. Category "A" included Kabul, Balkh, Ningarhar, Hirat and Kunduz. FEFA carried out an extensive coverage of these provinces as it fulfilled the presence of all four factors. Catagory B included Kandahar, Laghman, Baghlan, Parwan, Takhar, Faryab and Kapisa. While these provinces had the potential for a full coverage, issues such as insecurity or fewer reported violations could suggest otherwise.

Category C included Badakhshan, Bamyan, Kunar, Samangan, Ghor, Badghis, Panjshir, Juzjan, Logar, Khost and Sar-i-pul. These provinces did not qualify for full coverage and therefore we had a somewhat limited coverage. Category D included Urzugan, Zabul, Paktika, Nimrooz, Paktia,

- 30 - Nooristan, Helmand, Farah, Midan Wardak, Daikundi and Ghazni. We had limited coverage in these provinces due to the security issues and/or difficulties for transportation and movement. On the basis of this four pronged deployment strategy, 8 provinces received full coverage, 6 provinces 75% coverage, 9 provinces 50% coverage and 11 provinces received 30% or less coverage.

In the first two categories receiving 100% and 75% coverage, reports indicated that IEC delivery was a reasonable reflection of the IEC's capacity to deliver and citizens' willingness to participate where, the conduct of elections was fair, and turnout was fair to low due to the fears that existed throughout the country. In the third and the fourth categories the reported performance of the IEC and general conduct of elections were less than reasonable and this was mostly due to problems with regards to the ease of access to the IEC, polling station identification, accessibility of voters and indeed accessibility of the observers themselves. Our reviews indicate a fair to weak and in places very weak performance and general participation trends.

FEFA's observation coverage in the districts was based on another set of factors, which included, 1) Existence of polling centers and stations as confirmed by the IEC, 2) Reasonable security, which was defined by sufficient government control, safety of movement as given in the security briefings and reports and 3) Sufficient communication facilities such as active phone networks in the province based on reports of the communications companies.

- 31 -

Information Flow Process for FEFA

ECC/IEC/ Security Media, Public and other Agencies Observer Organizations

Information Dissemination Data out

Data Entry, Analysis and Synthesis

Information Collation Data In

Provincial Observation + Provincial Media/Security Reporting Monitoring

Information Gathering

Provincial observation+ reporting refers to the incoming reports compiled from the reports of Local Observers, District Observers and Provincial Observers. The observers monitor implementation of election laws, peaceful process of campaign period and availability of equal opportunities for all candidates as well as the security situation throughout campaign and elections period.

- 32 - c. Pre-Election Day Period

The pre Election Day period includes the voter registration period, the candidate nomination period and the campaign period. i. Voter Registration October 6, 2008 – February 20, 2009

Introduction

The Voter Registration Period began on October 6, 2008 and ended on January 11, 2009, although there were still a number of centers where people could continue to register until the day before the polling day. This process which was in fact not a new voter registration process but a voter register update, led to 4,720,906 people being registered across the country, as per the IEC Press Statement of July 12, 2009.

This process, as per Constitutional directives (A156) was conducted by the IEC. According to the IEC, during the four phases of the registration process, 4.5 million new voters were registered, bringing the total number of registered voters to roughly 17 millions. Of the new voters, according to the IEC, more than 38% are female. In the course of registration process, IEC accredited media and other observer organizations. The IEC accredited 36 media outlets to be present during the registration process in the registration centers. IEC also provided identity badges, facilitating entry into the registration centers, to 2204 observers and reporters.

FEFA obtained accreditation to observe the election once the first phase had already started. This was due to funding issues as well as the delay in obtaining observer accreditation from the IEC. FEFA observed the process depending on the availability of funding and personnel and as the security situation permitted.

The last elections held in Afghanistan listed around 12.5 million voters. As a result of the above mentioned Voter Register Update, new cards were issued while old cards also continued to be valid, and therefore nobody knew the exact figure of registered voters. This fact added to the issuance of new voter cards while the questions with regards to the main and initial figures regarding voter lists remained unanswered. FEFA has received reports of individuals owning a number of voter cards and voter cards' being bought and sold.. This issue was in addition to male members of families getting voter cards for a number of female members of their families. These reports coming from many areas in Afghanistan led to suspicious views on the actual number of voters and the number of voter cards issued.

The voter registration process began reasonably well. The process, however, faced many challenges, one of which was opening the voter registration centers (VRC) on time. 261 sites were included in the first phase, out of which only 204 centers were open on day one. Another 40 centers were opened within six days of the start of the process, while many of the centers were not opened due to logistical and security issues. Maintenance of security remained a serious challenge, however, the initiative of having a phased voter registration process combined with the selection of relatively secure provinces in the first phase of the process helped maintain relatively better levels of security. Still during this phase, coordination of voter registration activities with entities such as the Ministry of Interior was a major area of difficulty.

The Independent Election Commission’s operations with regards to voter registration were started late; they started operations on October 6, the day the voter registration process started. This resulted in a number of coordination issues such as with regards to coordination of air movement and police escorts, which could have been avoided by an early establishment of voter operation centers.

- 33 - Another problematic area was establishment of sound communication bridges between the IEC head quarters, and Provincial Electoral Officers on one hand and between Provincial Electoral Officers and District Field Coordinators on the other. This lack of proper communication channels led to confusions on the figures of registered voters and its true reflection at national and international levels.

Voter registration enables individuals to vote on the Election Day. If as per the Constitution or the Election Law, an individual does not have the right to vote, he or she must not be registered in the first place. We observed a number of violations or problems during the voter registration period which are given below:

• Under-age Registration: In violation to the Article 13 of the Electoral Law which says that eligible voters are those who are 18 years of age on the day of election. • Multiple Registrations: In violation to Article 4 of the Electoral Law which states that each voter shall have one vote in the elections and shall vote only on his or her own behalf. • Lack of impartiality and political independence of electoral staff: In violation to Article 9 of the Electoral Law which states that electoral officials shall perform the duties assigned to them in an impartial and unbiased manner • Registering women based on a list which was provided by male relatives: In violation to Article 4 of the Electoral Law which emphasizes that each voter shall vote only on his or her own behalf. • Location and distance of the Registration Centers, which were away from residential areas • Lack of observers and media in the registration centers • Security impediments stopped people from participating in the process.

FEFA believes that the main factors leading to these violations constitute of:

• Lack of adequate training of the electoral staff by IEC • Lack of appropriate vetting of the electoral staff by IEC • Lack of female electoral staff in adequate numbers • Lack of an understanding of democratic values among people and electoral workers • Lack of coordinated planning between different actors

FEFA obtained accreditation to observe the election once the first phase had already started. This was due to funding issues as well as the delay in obtaining observer accreditation from the IEC. FEFA observed the process depending on the availability of funding and personnel and as the security situation permitted.

Observation Methodology

The Kabul based FEFA staff provided strategic leadership, guidance, training and support to the provincial volunteers. In each province, FEFA had at least one provincial representative who was an independent qualifying individual volunteering for FEFA and was based in a FEFA partner organization. These representatives were the overall in-charge of all FEFA activities within their provinces, including recruiting and training of the observers, who were recruited to directly observe the process.

All information gathered was collated and reported back by the provincial and district staff for analysis. Everyone involved in the process was a volunteer except for the FEFA staff at the Head Quarters in Kabul. All involved were trained extensively on a range of observation related issues.

Data gathering mechanisms used by FEFA observers included checklists, urgent reports, and weekly reports. Checklists were provided to the observers who were already trained on ways of using them.

- 34 - These checklists, after information gathering were sent to FEFA Head Quarters through FEFA provincial representatives. Urgent reports were mostly conveyed verbally and covered any issues concerning gross violations of the electoral law or the democratic processes through the provincial representatives. Weekly reports were more detailed and were provided to the FEFA Head Quarters in the narrated format.

FEFA's monitoring team traveled the field to verify the instances of the violations. FEFA also conducted specific exercises in order to further investigate certain violations. There were instances where the checklists could not be deemed the best way of gathering data, particularly when qualitative data was required. This is evident in cases of multiple registrations which could not be detected or quantified within the registration centers. Therefore FEFA observers went outside the centers to detect and report on such instances using interviews. These interviews took place with the residents of the area outside of the official registration hours. Also, observers liaised with the local civil society institutions who shared information on cases of multiple registrations and other kinds of violations.

FEFA shared its findings with the IEC on regular basis. Weekly meetings were held with IEC officials and specific information, physical evidence as well as recommendations for improvement of the process were submitted to them.

Phases

The decision to conduct an update to the current voter register of 12.5 million voters was held in late June 2009, because it was not possible to hold a new registration exercise. It was further decided that the UN Development Program will assist the IEC in developing the update in a way as to allow the existing voter registration information to serve as the base for the eventual establishment of a more accurate and sustainable voter register based on international standards.

Voter registration was conducted in accordance with the Article 33 of the Afghanistan Constitution and in order to specify the eligible figures and electoral constituencies specify the voters and relate them to specific polling centers, thus establishing a voter list with specified polling stations as well as accurate lists of eligible voters.

During the process, voters registered themselves in the registration centers, located in district, with each center having 2 to 6 stations. There were different registration stations for male and female registrants, with specific registration centers considered for Kochi registrants in each provinces and district. There were also different registration centers, such as fixed registration centers, mobile registration centers, centers for Kochi and when necessary extra centers were established.

IEC decided to divide the voter registration exercise into four one month phases. In first phase, Badakhshan, Koner, Noorstan, Wrdak, Ghoor, Bamyan, Dikondi, Ghazni, Sarepol, LOger, Kapisa, Parwan, and Takhar; in the second Phase, Balkh, Samangan, Jozjan, Fariab, Kabul, Heart, Badghis, Baghlan and Kundez; in third Phase, Nangrahar, Laghman, Paktia, Khost, Paktika, Zabul and Farah; and in the fourth phase, Kundahar, Orzgan, Nimrooz and Helmand were covered.

This decision while on one hand was to enable the Afghan National Police (ANP) to secure all voting registration centers throughout the country, on the other, was to consider the climate and therefore ensure greater participation. It also helped the IEC to use lessons learned from each phase in improving region oriented public outreach mechanisms and logistical arrangements in the phases to come.

The exercise which started on October 6, 2008, was closed on February 2, 2009, and left sufficient time for the candidate nomination to start in March 2009.

- 35 - In order to regulate the voter registration operations, the IEC approved the Regulation on Voter Registration pursuant to the Article 56 of the Electoral Law which gave this authority to the IEC. This regulation required the IEC to announce the voter registration dates at least 30 days and the location of the voter registration centers at least 7 days prior to the start of the operations, and have at least one voter registration center established in each district and for a city in each Nahia, with special registration centers for nomads. Also, as far as possible, it required the IEC to establish mobile teams for registration of in-patients and prisoners, who are not barred of their right to vote by any court of law.

As per the Regulation on Voter Registration all Afghans were eligible to register who: • Have turned 18 since the last registration or will turn 18 before September 2009 • Not already registered • Returned to Afghanistan since the last registration • Moved to a new province • Lost their old registration card

Newly registered

The last elections held in Afghanistan listed around 12.5 million voters. As a result of this year's Voter Register Update, new cards were issued while old cards also continued to be valid, and therefore nobody knew the exact figure of registered voters. This fact added to the issuance of new voter cards while the questions with regards to the main and initial figures regarding voter lists remained unanswered.

With a potential of approximately 15 million voters, the voter registration exercise aimed at registering over 2 million new registrants and perhaps 3 million voters who had either lost their card or had changed provinces since the last election. Although voters were not attached to any particular polling station in these elections, IEC plans to assign all new registrants and those eligible to register according to the above criteria to a polling station. This would, if possible at all, help a proportion of the population know exactly where they will vote on Election Day, allowing the IEC to prepare more adequately for the supply and transportation of ballot papers.

FEFA has received reports of individuals owning a number of voter cards and voter cards' being bought and sold. We also observed that despite the official end of the voter registration process, in some areas such as Kang District of Nimroz Province, Voter Registration Cards were being issued. These issues, in addition to male members of families getting voter cards for a number of female members of their families, led to suspicious views on the actual number of voters and the number of voter cards issued.

Security

As the security situation in the country deteriorated, people were prevented from registering to vote throughout the registration processes. During the first phase of the process a large number of voter registration centres were closed occasionally or permanently for security reasons. Some examples of closed/partially closed stations, that FEFA observed, include Andar, Khugyani and Nawa Districts in Ghazni, Jalrez and Jeghato in Maidan Wardak, Shahrak, Tolak and Charsada Districts in Ghor, Kharwar District in Logar and Doaba District in Nooristan Province.

During the second phase of the registration process the security forces did take measures to ensure safety of the centres however some incidents took place that jeopardised the registration process. For example, on the 14th of November 2008, a suicide bomb attack caused closure of Nawaik District registration centre to postpone its activities for a day. Also, in Guzara District of Herat province suicide attack occurred, although relatively far from the registration centre, it caused suspension of activities at

- 36 - the centre for a day. And a suicide bomb at Masood Square on the 27th November 2008, caused closure of voter registration centre in nearby Abdul Dawi High School for at least one hour.

Security also created a situation where people could not access the centres. In Pul e Khumri, some registration centres were not accessible to voters from Dand e Ghuri District due to security issues on the way. Local people, in this case approached the IEC with a written application and necessary guarantee of security asking to move the centre to their area. However, the IEC was unable to move the centre due to “potential security threat” in Dand e Ghuri District. In this district approximately 50% of the people, mainly women could not vote for this reason.

In Paktia, Faryab, Badghis and Baghlan Provinces FEFA observers reported that the IEC has not been able to move the voter registration centres normally from one area to the other because of the security situation. In some areas the lack of guarantee of security by community elders has caused these problems. The presence of a rebel commander in the mountainous area of Dar-e-Kayan of Baghlan Province resulted in IEC staff being unable to go to the area and continue the registration process. This rebel commander’s brother is already in detention with the government, and he is expected to take action to protest against his brother’s arrest that may include taking government officials hostage.

Third phase of the registration process suffered security blow at the outset as the IEC staff were kidnapped in Farrah and Paktika Provinces. Although, these staffers were released with co-operation of the local people, it put negative impact on the morale of the staff working in the areas in question. Due to security concerns, despite previous plans, the IEC could not open some centres in third phase. This includes Kakar and Arghandab Districts of Zabul Province. IEC also delayed opening of some centres due to security reasons until the last week of the third phase. These include, Wawmana, Geyan and Naka Districts of Paktika Province. The IEC stated that lack of security guarantee was reason for this delay.

The fear of attacks from both sides of the conflict or being arrested by both the coalition forces and the anti government armed groups, was one of the reasons for low turnout, especially for women. On the 8th December 2008 the coalition forces carried out an operation in Batki District of Nangarhar Province. Due to this and subsequent arrest of some people of terrorism related charges, a sense of fear was created in villages around the district and people reduced their movement. This resulted in very little of no participation in the process in some villages. Anti government groups issued night letters during the third phase of the registration. This included in the Bati Koot District of Nangarhar Province, Baak District of Khost and Meterlaam City of Laghman. This created a feeling of terror and people decided to stay away from the registration process.

The fourth phase of the registration was carried out at the four most insecure provinces of the country. The concerns were high; however, the security forces did a good job of at least ensuring that some people were able to register. However, the security situation had a negative impact particularly in the rural areas on the implementation of the fourth phase of the process, as it had on the previous phases. Bad security situation resulted in the IEC not being able to establish registration stations in seven districts including Bagheran, Nowzad, Washer, Desho and Khanshin Districts of Helmand Province and Ghorak and Meyanshin of Kandahar Province.

As a contingency measure, the IEC decided to change the locations and establish registration centres for the above districts in other areas, but people’s participation were not noticeable in these centres. In addition, 16% of the IEC’s registration centres were located inside governmental buildings such as the district buildings and police stations due to security reasons and this has resulted in a low turnout, especially of women. Occurrence of single incidents during the process had temporary negative impact on stations close by.

- 37 - For instance, on the 28 January 2009 a police officer guarding a registration centres was killed close to the Zainab School in Kandahar City and on 17th February 2009, two police officers were killed in Karz High School causing negative impact on people participation. Also, the wilful military operation by coalition forces on 8th February 2009 in Dand District, 10 KM from the Karz High School registration centre, killed two local commanders and had a negative impact on the process as it created atmosphere of fear.

Rumours about Taliban threats to prevent participation by the insurgents in the fourth phase in the following districts had a negative impact on participation, especially women’s participation: Shahwali Kowt, Panjwaie and Maiwand Districts in Kandahar Province. On 12th February 2009 a resident of Sangin District of Helmand Province was arrested by Taliban on the way home from a VR station and they made him eat his card as punishment. This action affected the morale of the local people negatively.

Also, in Chaharchino and Chenarto Districts of Oruzgan province, Taliban were threatening people from the start to the end of the process not to participate and they did this via messages from mullahs and imams of local mosques. Generally, FEFA believes that of approximately 400 centres, 20 were closed due to security concerns, although others were affected but only temporarily.

Since security in Afghanistan is a contentious issue and at times perceived lack of it creates an atmosphere of fear in public that prevents them from participating in processes such as the elections. Therefore, IEC must make public clear and factual information about the security situation so that people do not have to rely on rumours. Irregularities

All Figures indicate percentage of VR Stations where FEFA observed the violations (Countable violations occurred minimum of four times; one or two violations could be attributed to human error; FEFA determined four as being part of a pattern).

10

80

6 40

2

Under age registration was Employing male staff in Non-impartiality of IEC was seen in 58% of observed female centers was seen in 18% of observed stations seen in30% observed stations stations

Multiple registrations Centers were for away VR cards distribution based was seen in 44% of from the people access on the list 24% observed stations 38%

Multiple Registrations

In contrast to the Article 4 of the Afghan electoral law which emphasizes on voter's right to only one vote, FEFA observed many violating instances. Most important of these violations was the distribution - 38 - of multiple cards to voters during the electoral process. Since it was not possible to detect this type of violation when observing the registration centre itself, FEFA observers interviewed people in the vicinity of the registration centres and found a large numbers of people that volunteered to show their multiple cards. FEFA photographed evidence such as these cards where possible.

Although in some cases, IEC staff had knowledge of these violations, in most cases IEC’s failure to

place detecting mechanisms was the main reason. Following are details and examples of this violation throughout the four phases of the registration process. These examples show a variety of the factors that caused distribution of multiple cards to individuals.

During the first phase of the voter registration, FEFA observers discovered that in Doaba District of Nooristan Province, the IEC staff distributed blank voter cards to the local elders. The FEFA observers reported that the number of cards distributed in this manner amounted to around one hundred. Similar violations were observed in Asmar District Kunar province, Anadr District Ghazni Province and Cheghcheran City of Ghor. Though follow ups with the Kunar IEC staff led to satisfactory provisions made, this violation spread wider during the last week of the first phase of the registration process.

During the second phase of the process, evidence of distribution of multiple cards, was evident in 40% of the centres that FEFA observed. Cases were witnessed in Kabul, Herat, Paktia, Kunduz and Baghlan. Involvement of IEC personnel continued to be a cause of this violation. In Badghis, IEC staff distributed voting cards to applicants without registering them first. The most serious case was the distribution of around 500 voting card to a single individual. In Kunduz Province, FEFA observed that the IEC personnel put aside an unknown number of voting card of women (who do not need to be photographed) without actually issuing these cards to women.

During the third phase of the process, FEFA changed its methodology and its observers started to report any centres where there were more than 4 incidents of multiple card distribution. The result was that of the total number of centres observed, 85% were noticed as being involved in providing multiple cards. Provinces where the highest number of such violations has occurred during the third phase are: Nangarhar, Laghman, Khost, and Farah.

During the fourth phase of the process, there continued to be a lack of mechanisms to detect this violation. This gap was used by individuals to obtain more than one card. Through interviews that the FEFA observers conducted with civil society institutions, the organisation concluded that there were incidents of multiple registrations in 30% of the centres it observed.

Main examples of this violation were observed in areas such as Gerishk Girls’ High School in Helmand Province, Sayeedal Khan and Tanali High Schools in Tarinkowt; Rodaba and Gul Mohammad Shahid

- 39 - High Schools in Zarang, and in Kandahar Province all of the stations located in District four of Kandahar City.

Although there are provisions in the Article 53 of the Afghan electoral law indicating that “possessing, or attempting to obtain, more than one voter registration card” is a criminal offence, despite the wide spread nature of this issue and the involvement of IEC staff in this matter, no legal action was taken. Based on FEFA observers’ reports, those involved in such violations have been identified by IEC and security officials, but in none of the cases the perpetrators were stopped, prevented or legally pursued.

IEC acknowledged the existence of this issue and also promised that it would deal with it through appropriate technology to detect duplicate fingerprints and stop those with multiple registration cards from voting several times, however, polling day experience proved that IEC did not have the capacity and technical means to deal with this issue on polling day. Even then the mechanics of this solution was also not clear, for example, it was not clear, in absence of exact addresses of individuals, how the ICE would be able to locate people to recover extra cards.

Under-age registration and the issue with the election date

Contrary to the Article 13 of the Afghan Electoral Law which requires voters to be of 18 years of age on the polling day, FEFA witnessed several issues that were in violation to this article both in fact and in spirit.

The change in the election date also contributed to this issue. In a meeting held on the 7th April 2008, in presence of the Afghan president and the cabinet, the IEC fixed the election date to October 2009. Accordingly, it was decided that those that turn eighteen in September 2009, in time for the elections, would be able to register. However, after the registration started, the IEC changed the election date to 20th August 2009. This resulted in a situation where people younger than 18 years of age possessed voter registration card and were able to vote on the election date and IEC did not taken any measure that could address this problem. Therefore, although at the time of the voter registration some seventeen year olds, according to the decision made by IEC, were granted voter registration card, due to change in election date that had brought the elections a month ahead, these young people violated the law when they voted.

FEFA observed several instances of distribution of voter cards to people that were clearly under the age of 17 or people that were not going to turn eighteen on the polling day. These children were aged

- 40 - anywhere from seventeen to what seemed like twelve. This is evident in photographic proof obtained by FEFA observers given above.

During the second phase of the voter registration FEFA observers noted instances of underage voter registration in 95% of the centres they observed. Due to the high proportion of the centres involved in this violation FEFA observers paid particular attention in identifying similar instances during the third phase of the voter registration process, where FEFA observers noted the problem of underage registration in the same proportion, in 95%, of centres observed. During the third phase of the process clear instances of this violation were observed in following provinces and centres:

Nangarhar Province: Voter registration centres in Istiqlal School, Public Hospital, Kochis’ Centre at the Tribal Provincial office and Kama district Khost Province: Voter registration centres at Shahid Mohammad Dawood High School, Ismail Khail and Mandozi district, centre at the provincial office Farrah Province: Voter registration centres at the Markazi High School and Mermen Nazo High School Paktika Province: Centres at the Central Hospital, Soliman Baba High School and the Orgon district Zabul Province: Centres at the Shah Jawi district and the Qalat Hospital Laghman Province: Voter registration centres at the Qarghaie District, Ali Nigar and Roshan High School

As underage voter registration continued to be a major violation that the FEFA observers noted throughout the first three phases of the registration process the organization devised a new strategy to gauge the extent of this violation during the fourth phase.

As part of this new strategy every observer spent two hours during the morning and two hours during the afternoon for a week counting the number of total voter registered in their respective registration centre and then deducting the number of voters that were underage in order to find a relative frequency of irregularities. The decision as to whether a voter was underage was based on their ID card, which at times indicated their real age, as well as their appearance. The findings showed that on average 19% of the total number of voters that registered were underage. This number was in addition to those people that had ID cards showing their age high enough to register but their appearance suggested otherwise.

Following is a table showing the number of underage people registering at some of the centres that FEFA observed during the phase four of the voter registration process using the above mentioned methodology:

Province VR FEFA’s Observation Total number Underage % of Centres observation period of registered registered total coverage voters applicants Kandahar 199 45% 26 Jan- 3 Feb 25880 5176 20% Oruzgan 55 72% 4 – 18 Feb 31000 9300 30% Helmand 120 45% 11 to 18 Feb 2738 575 21% Nemroz 26 38% 20-30 Feb 8899 445 5%

During the fourth phase of the process the following centres showed high number of incidents of underage registration:

Kandahar Province: Centre in 002 Zarghuna Ana High School, Centre 016 Arghandab District, Centre 027 Panjwaie District, Centre 008 Haji Merwais Khan High School, Centre 005 Mahmood Tarzi High School, Centre 013, Karz High School Oruzgan Province: Centre 04, Tarinkot District, Centre 01 Dahrawod District, Centre 02, Chora

- 41 - District, Centre 01 Chenarto district, Centre 01 Oruzgan Khas District and Centre 01 Charino District Nemroz Province: Centre 01 Gul Mohammad High School, Centre 02 Rodaba High School Helmand Province: Centre 02, Boys’ High School, Centre 01 Girls’ High School, Centre 03 Teachers’ College, Gerishk Mechanical High School Centre, Garmser Primary School Centre and Angar District Torang Centre

FEFA attributes this violation, in part, to the IEC staff’s failure to follow procedures, which can either be due to inadequate training they received or, in some cases, due to lack of impartiality.

In Article 6 of the Regulation on Voter Registration that IEC states that its staff must ensure that persons wishing to register to vote submit the following personal information:

(a) Name; (b) Father’s name (c) Age; (d) Complete home address to the extent possible; (e) Gender; (f) Where he or she wants to vote (g) Thumbprint.

However, FEFA witnessed instances where this regulation was not followed by IEC staff resulting in registration of underage people to vote. During the second phase of the voter registration FEFA observed more than one hundred instances of IEC workers not obtaining the information required in Faryab, Jowzjan, Kunduz, Baghlan and Herat provinces. These were mainly in women’s registration centres.

During the fourth phase of the registration FEFA observers reported that in the 58% of the centres observed voter ID was not adequately checked for age and identity verification. FEFA believes that lack of adequate training was one f the reason why this violation continued to occur. FEFA, based on its field reports, concludes that some electoral personnel were lenient in checking and verifying identity documents of people that they related to in terms of ethnicity and language.

IEC staff performance and impartiality

Electoral Laws of the country clearly indicate that the electoral official must be committed to impartiality. This commitment, according to the Article 9 of the electoral law places following obligations: (1) Electoral officials shall perform the duties assigned to them in an impartial and unbiased manner and may not seek or receive instructions from any government or non-government official or authority, except the Director of the Secretariat. Furthermore, Article 10 of the Afghan Electoral Law, places following recruitment restrictions on electoral officials: (3) A father, grandfather, descendant up to the third generation, mother, grandmother, brother, sister, spouse, uncle, aunt, father- in-law, and mother-in-law of a candidate shall not have the right to work as an electoral official in the constituency in which the concerned candidate is running.

Although, these legal provisions clarify the legal and moral obligations of the electoral officials, FEFA observers noticed a variety of incidents that amounted to the violation of these rules throughout the voter registration process. Each incident that the FEFA observers noted were unique, however there were reoccurring types of incidents that amounted to violations. These incidents are described and analysed below:

During the second phase of the voter registration FEFA observers noted a variety of cases where the IEC staff at voter registration had political affiliations. Political affiliation and involvement occurred in various forms and due to lack of resources FEFA was unable to record all of these occurrences, - 42 - however, the incidents that are noted, the organisation believes, are indicators of the overall trends throughout the process of voter registration. This is because the incidents were observed in almost all provinces of the country instead of appearing on occasion in certain areas only.

Following are some of the cases that the FEFA observers noted:

• During the second phase of process, the head of the registration centre at the Setara High School at Maimana City of Faryab Province was the active chair of the women’s affairs of the political party Junbish Mili Islami Afghanistan. When FEFA officials posed the question as to why this violation occurred IEC provincial staff indicated that it was due to the fact that the person in question was promoted to her position without checks on her political involvement. Similar cases were also seen in Pakia Province where, for instance, the brother of a Mahaz e Mili party was heading the Voter Registration centre and • During the third phase of the registration process, in Nangarhar Province, civil society groups accused one Kochi member of the parliament of wilfully firing a staff member of the IEC and appointing a relative instead. When FEFA observers reported this incident to the IEC, no action was taken. • In Nangarhar Province, two brothers of the deputy of the political party “De Soli Ghurzang” were employed as electoral officials and were accused by the people of misusing their position for political purposes. • In Nangarhar Province, the son of the president of the political party Fesabil Allah was appointed as the logistics officer for the electoral process. • The head of the voter registration centre at the Alinegar District of Laghman Province was identified by people as a member of the political party Afghan Milat. According to the local people he misused his position for political gain.

During the fourth phase of the process, FEFA noted that 27% of the stations covered by FEFA indicated some degree of lack of impartiality of staff. In Helmand Province, civil society groups accused the head of Lashkargah Girls’ High School of interfering with the voter registration process. Incidents of underage registration were noted in this school and the IEC failed to respond to the complaints lodged by FEFA in this regard.

FEFA observers also noted cases of staff impartiality in Shah Walikot, Maiwand, Panjwaie and Zhere Districts of Kandahar province. From FEFA’s observations it was clear that the officials of these voter registration centres were part of a group of powerful local people. In Oruzgan province local powerful people and former Jihadi commanders were appointed as head of some voter registration centres and stations particularly in Tarinkowt and Khas and Chenarto Districts.

In Nemroz province the heads of two centers of Rodaba High School and Shahid Mohammad Gul High School were accused of being linked to left wing groups functioning unofficially. These centres were also the location for the underage registration cases. FEFA repeatedly asked for the opinion of the IEC provincial officials in this regard, but did not receive a satisfactory response.

Beside above mentioned clear indicators of political bias and misuse there are incidents that indicate bias, lack of impartiality and incompetence. Throughout the process some IEC staff used their authority to change the location of voter registration centres which may have resulted in political gain for some.

Some examples noticed are:

• During the second phase of the process, on the 01/12/2008, in the 13 District of Kabul City, Dasht-e-Barchi, voter registration centre number 051 was authorized by the IEC provincial office to move to Kakur of Qalia Qazi area. However, due to unknown reasons the head of the

- 43 - local area delayed the move until the end of the phase. Due to this some of the eligible people in Kakur village couldn’t register especially women. • On the 5th of January 2009, during the third phase of the registration process, the voter registration centre was moved from from Abdul Wakil School in Nangarhar Province to the house of the Nangarhar Provincial Council Representative for three days. • On the 8th of January, again in Nangarhar province, voter registration number 014 in Bibi zainab Girls’ School located in district 3 was moved to the house of the representative of the Wolosi Jirga where 400 people were invited for Khatem Ul Quran (Quranic recitation accompanied by a meal). • Further, during the third phase of the process, registration centres’ locations were changed in Alinegar District and Meterlaam city of Laghman; Pechar Agham, Gusha and Naziyan Districts of Nangarhar; Argon, Meta Khan and Katwaz Districts of Paktika; Mosa Khail District of Khost, indicating possibility of lack of impartiality at worse and incompetence of staff in following procedure at best.

Registration center accessibility and locations

Due to a variety of reasons both practical and cultural, locations of the registration centers were of immense importance throughout Afghanistan. FEFA noted that when deciding on the location of registration centers, the IEC failed to make sure that all these cultural and practical considerations were taken in to account. This resulted in a number of people not registering to vote.

During the first phase of the process FEFA noted that registration stations were situated in locations that were inaccessible either due to distance or the nature of the space where the station was situated. This was particularly true in rural area.

At the beginning of the process district buildings and other government offices were used to house registration centers. Since culturally it is not appropriate for women to go to government buildings particularly police stations, locating registration centers there kept a number of women away. Secondly, since government offices, on account of them being seen as a primary target of the armed anti government groups, people chose not to go there for fear of insecurity. This issue was reported in Shegel, Asmar and Nari Districts of Kunar Province and Nangraj, and Doaba Districts of Nooristan province.

In some instances when the Electoral Commission realized that the location of the centers in government buildings were preventing people from registering therefore they decided to relocate the stations in neutral venues. However, shifting the centers from one area to another was time consuming that prevented even further people from attending the centers to register. When FEFA communicated with the IEC on this issue they said that they have changed procedures and has now given the IEC provincial officials authorization to change centers’ location. We believed that this was not the ideal solution of the problem. Instead the IEC could have considered all socio cultural issues prior to making decisions on locations of the centers.

During the third phase of the registration similar issues were noted by FEFA. In 35% of the registration centers that FEFA observed people complained of the registration centers being too far from residential areas. This led to reduced participation, especially of women. Some examples of registration centers being far from residential areas were:

• Centre at Kama District Nangarhar Province had a minimum of 12KM distance from Neta Khail Village • Centre at Anar Dara District of Farah Province had a minimum of 15 KM distance from Kalata Alam Khan Village

- 44 - • Centre at Dowa Manda District Khost Province had a minimum of 25 KM distance from Sayeed Khail Village • During the fourth phase of the registration process the problem of location and distance of registration centers were predominant in rural areas.

In 53% of the centers that FEFA observed, people complained about distance and location of the centers, affecting people’s participation in the process. Following are some examples showing distance between substantial residential areas and their nearest registration centre:

Provinces Residential Areas Distance to nearest Station Nemroz Hele, Din Mohammad, and Kank Villages 50KM Nemroz Khawja, Sarjo and Awar Villages 15KM Oruzgan Sarlaf, Sardasht and Kada Villages 30KM Oruzgan Khowabgah Kolokhak, Khudy Nazar Khan and Dah Raees 15KM Villages Oruzgan Safid Qand Village Chahar Cheno District 13KM Oruzgan Sarab, Meyando, Paatan, Langar and Ghara 10KM Kandahar Chenarto Village, Shah Wali Kot District 30KM Kandahar Berak village, Spin Boldak District 45KM Kandahar Khogyani Village, Marof District 18KM Kandahar Anjeran Village, Arghandab District 18KN

Distance and choice of locations of registration centers clearly played a part in hindering people’s participation in the process. Despite FEFA's attempts at convincing IEC of dealing with this issue before polling day, many could not get a chance to vote.

As per the Article 3 of the IEC’s Regulation on Voter Registration, the IEC was abound to designate specific registration stations for Kochis, the nomadic people residing mainly in the warmer areas of the country at the time of the registration process. FEFA however, noted instances where IEC failed to fulfill their obligations. Some of these instances are mentioned throughout this report, particularly with relations to the lack of female staff in the mobile registration units that prevented Kochi women’s registration. This was a major problem throughout the third phase of the process especially where Kochis resided in warm areas such as Khost, Laghman and Nangharhar, and lack of female staff in the mobile teams prevented women’s participation in the process. This problem was noticed during the fourth phase too.

Unscheduled delays and closures of registration centers

FEFA observers noted frequent changing the opening and closing time of the voter registration centres, which resulted in political manipulation by different sides. During the first phase of the voter registration, the opening time for voter registration centres were set to be 7:30 in the morning however, most centres that FEFA observed did not open until at least 8:30 in the morning. Similarly, FEFA observed that 90% of the voter registration centres observed did not open before 8:30 in the morning and closed before 4 in eth afternoon. At times voter registration centres remained closed due to issues of no relevance to registration. For instance, during the first phase of the process in Ghor Province’s Dawlat Yar District, the center was closed due to the wedding party of the area elder.

Another issue was the temporary closure of the centres. Center personnel recruited, mostly public servants, were unable to attend their voter registration duties on full time basis. This applied particularly to school teachers where the annual exams unexpectedly clashed with the process. This caused early or temporary closure due to staff absence. In some cases the closures was up to 6 hours. In this respect FEFA was able to verify at least 20 cases as such identified mostly in Baghlan, Kunduz, Faryab, Jowzjan, and Balkh provinces. - 45 -

Electoral laws and regulation of the country place clear emphasis on the need for maintaining confidentiality and due care in handling of the electoral data. Article 9 of the Afghan Electoral law places following obligation on the electoral staff: “Prior to taking office, electoral officials shall declare, officially and as specified by the Commission, that throughout the electoral process they will fulfil the duties assigned to them with decency, truthfulness, and confidentiality.” This obligation is further clarified in by the IEC through its regulations on voter registration’s Article (12) that states that the IEC must “take proper measures to ensure that the information supplied during voter registration for the election process is not used for other purposes except as authorized by law.

FEFA witnessed instances where confidentiality was jeopardised as electoral data was mishandled. During the third phase of the process, of all centres that FEFA observed 20% showed evidence of mishandling of sensitive data. This issue manifested itself in several different ways. For instance:

• In Laghaman Province the head of the station in Alisheng District, head of the station at the Qarghaie Districy and the logistics officer of the Basram village and Meterlaam City station took the sensitive materials to their homes at night. • In Nangarhar province Shrzad, Qala Akhund, Kama and Shewa District stations and Khusgunbad School in Behsood District the voter registration canters were not secured causing a variety of problems. • On the 28th of December 2008, when the station was not secured in Paktika a camera and printer were stolen, which resulted in a two day closure of the station causing problems and creating doubts in people’s minds over the process. • On the 29th of December 2008, in Zabul Province, the printer cartridge was sold by the IEC official. The accused was identified and it was verified that he had indeed committed the act, however he was not charged and he continued at his job. • On the 3rd of January 2009 a number of the active civil society organisations showed FEFA observers the registration books, the most sensitive materials in the process, no longer in possession of the IEC, which indicates either the possibility of the IEC staff being negligent in looking after the book or the had knowingly given the book to someone. This opened the opportunity for misuse. • During the fourth phase of the process, 10% of the total of the stations that FEFA observed showed evidence of mishandling of sensitive materials. • In Helmand province FEFA observed that the Head of a station located in the Girls’ High School has taken sensitive materials to his home at night. • In Tarinkowt City of Oruzgan Province of Tanali High School station and Dehrawod district it has been observed that after VR hours the cameras have been used for personal purposes for an hour after every registration day.

FEFA believes that procedural violations were caused due to lack of adequate training. This was an issue that needed to be addressed prior to the Election Day so that the process would have not lost legitimacy.

Female voter registration

According to the Article 3 of the Afghan Electoral law all “voters shall have equal rights of participation in the elections”. However, as in many other aspects of the Afghanistan’s socio-legal culture, a true interpretation of this legal provision is yet to be made. While on one hand, over all female participation was low, on the other procedural violations caused even further reduced participation rate.

- 46 - • Scale

Women’s participation in electoral registration was lower than desired. This was due to a multitude of cultural and social restrictions. There were varying degrees of women participation in different provinces or different districts of same province. For instance, in the first phase of the project, in Maidan Wardak and Nooristan Provinces women’s participation was a lot lower than Parwan, Kapisa, Ghor and Takhar Provinces. Similiarly, women's participation rate in Ghazni Province’s Andar Distrct was lower than the Jaghori District of the same province.

During the second phase of the process women’s participation was generally low; however numbers were comparatively higher in Northern cities. Furthermore, in rural areas women’s participation was lowers due to security challenges and the inaccessibility of registration centres. This problem was observed mainly in Baghlan, Kunduz, Faryab, Paktia and Badghis during this phase. One particular reason In Badghis and Pakita was employment of male staff in female registration centres, which came to be a serious cultural barrier. Employment of male staff in female centres was a procedural violation that occurred in 20% of the centres that FEFA observed during the second phase including in Paktia, Kuhistan District of Faryab, Ghur Maatch and Murghan Districts of Badghis.

During the third phase of the process women’s participation was generally good in central Nangarhar, Laghman, Farrah and Khost Provinces, but it remained poor in outer regions. Employment of male staff in female centres remained one of the key reasons for low female participation. This violation occurred in 93% of the stations observed by FEFA.

Most of the district level mobile registration stations were run by male staff. In Paktika Province no women were employed to take part in mobile stations and only three women were employed in Qalat City of Zabul Province. In Khost, Farrah, Nangarhar and Laghman women were employed in urban areas but not in rural areas. High number of urban women’s participation can be attributed to the higher number of female staff. Another reason for low women’s participation in the third phase of the voter registration process was the location of some registration centres inside government buildings. This applied to 10% of the centres that FEFA observed.

In the fourth phase of the process security problems were more serious compared to the previous phases and it had negative impact on women’s participation, besides the issues of inaccessibility of VR stations, lack of female staff and male staff employed in female centres. Furthermore, 16% of the IEC’s voter registration stations were located inside governmental buildings like district buildings and police stations, which put adverse effects on women participation in the process.

The examples above indicate that women’s participation was an issue throughout the country and throughout the four phases of the voter registration process. However, some of the reasons why this issue persisted were due to lack of sufficient attention to gender issues while planning the registration process. This included recruitment of female electoral workers and considering gender implications when deciding on locations of the centres. IEC could have used lessons learned from VR process while planning for the polling day and future VR processes.

Security issues impact everyone; however, it affects women’s participation more seriously. Therefore, security must be strengthened if women’s participation is to be increased.

• Registration of women by male members of family

Article 5 of the Afghan Electoral law states that the voters and candidates take part in the elections on the basis of their free will. Imposition of any kind of direct or indirect restriction on voters or candidates on the basis of language, religious, ethnic, gender, tribal, geographical, or social status is

- 47 - prohibited. However, we observed many instances where free will of women was ignored as IEC allowed male family members of women to act on their behalf and register them to vote.

One such violation was registration of women based on lists presented by men apparently of women related to them. IEC staff provided voting cards based on the names on the list and issued voter cards without a photograph and with the man’s fingerprint where the fingerprint of the holder of the card should have been taken. This practiced continued in the second phase also. Following table show prevalence of this act during the second phase of the voter registration.

Location % of station that FEFA covered Notes where this violation was noted Paktika Province 99 1% of stations observed were at hospitals therefore women registered directly Zabul 90 Khost 90 Nangarhar 30

This violation was also observed during the third phase of the registration process. Of the centres that FEFA observed in Paktia for instance, in 20% centers, women were registered based on the lists that the male members of the family provided, and without the women being present in the centres.

The list based card distribution continued during the fourth phase of the registration as well. Of the centres that FEFA observed, this practice was noted in 29% centers. In some station during the fourth phase, the IEC officials handed over the registration books to male members of families. The books were then taken by these men home where they supposedly obtained women’s finger prints and then cards were issued based on the provided lists.

Registration of women based on lists artificially increased the numbers of registered women, with some cases of women voters outnumbering men. Lack of women participation continued to be ignored due to IEC staff's acceptance of lists of women provided by men.

When FEFA enquired this issue at provincial level, they were told that the list system was authorised by the central IEC office in Kabul. On the other hand, IEC central office denied authorizing any such lists and promised to investigate into this issue and the cases of IEC officials involved in this. However, no investigations have taken place, though detecting the same fingerprinted cards and terming them void would have again affected women who were truly registered in this way.

• Female registration staff issue

Besides the general lack of efficient electoral staff in sufficient numbers, and the distanced voter registration centers that severely cut the access of voters to those centers, female voter registration centers had many other issues. The first issue observed by FEFA observers was lack of female staff where in most cases men had replaced women at those centers. We also observed instances of female staff lacking enough education to register voters properly and therefore affecting the whole process and opening way for political manipulation.

Furthermore, FEFA noted cases of misuse of technical equipment such as cameras given to voter registration staff. In particular such instances were observed in provinces of Helmand, Uruzgan, Sheberghan, Logar, Nangarhar and Balkh where female voter registration staff had taken cameras to their homes, taken family pictures and had them printed on the center printing facility. Other cases of

- 48 - misuse of authority were also noted where headmistresses of schools had forced their students to register multiple times if they want to receive high scores in school subjects.

Observers/Monitors role and accreditation

• FEFA’s varied coverage (geographic and registration phase)

Voter Registration took place in four phases throughout the country. During the first phase of the process, due to lack of funds, FEFA had to deploy its contingency plan. According to this plan, the provincial representatives were deployed without the basic honorarium to observe the process. In the second phase, FEFA deployed ten trained representatives to all 10 provinces where they trained 298 observers of which 101 were female.

During the third phase of the voter registration, FEFA managed to observe 70% of the process in 6 provinces. Every FEFA observer observed at least three centers. To do this, six provincial master trainers received extensive training at FEFA Head Quarters in Kabul which they passed on to 136 observers including 42 women.

During the last phase of the process, FEFA observed 50% of the voter registration in four provinces. Every FEFA observer observed at least 2 centers. Prior to the commencement of the fourth phase, four provincial master trainers received extensive training at the FEEFA Head Quarters in Kabul for two days, after which they were deployed to their respective provinces where they conducted trainings to 90 observers including 23 women.

The training provided to the observers game them skills such as the observation skills especially in relation to registration process, observation methodology, and practical exercises for using the checklists, conducting interviews, reporting system and timelines.

- 49 -

The table below gives the details of each phase as well as FEFA's coverage percentage:

Phase Dates Provinces FEFA Coverage First October 6 – Badakhshan, Bamyan, Dikondi, Ghazni, Ghoor, Kapisa, 20% November 4, 2008 Koner, Loger, Nooristan, Parwan, Sar-e-Pul, Takhar, Panjsher and Maidan Wardak Second November 5 – Badghis, Baghlan, Balkh, Fariab, Herat, Jowzjan, Kabul, 65% December 4, 2008 Kunduz, Paktia and Samangan Third December 12, 2008 Farah, Laghman, Khost, Nangrahar, Paktika and Zabul 70% – January 12, 2009 Fourth January 20 – Helmand, Kandahar, Nimrooz and Uruzgan 50% February 18, 2009

• Media and observers coverage overview

As per the Article 3 of the IEC Regulations on Voter Registration media, observers, and agents of political parties and candidates can be present in any voter registration centre subject to accreditation by IEC and following the code of conduct. IEC also states in the same article of the regulations that it will accredit relevant people. However, there were a range of issues that resulted in lack of observers and media attendance at the registration centres.

Firstly, IEC did not have enough capacity to process and issue accreditation to media and observer organisations. This was one of the reasons why FEFA was prevented from starting observation on time. This resulted in FEFA observing a small proportion of the registration process during the first phase of the process.

Media agencies also had similar complaints as they were not issues with accreditation in time, therefore media could not report on the registration process as they would have liked to.

During the third phase of the process, in 98% of the centres that FEFA observed, FEFA was the only outside agency present. There were no other national or international observers present. Only in Nangarhar, Khost, Laghman and Paktika media that too in the form of local radio stations was present. Same was the situation during the fourth phase of the process where 99% of the centers were observed by FEFA. Of the observing entities, only local radio stations' representatives were present in Kandahar, Oruzgan, Helmand and Nemroz Provinces.

Presence of media and observers had dual effect on elections. Firstly, they ensured that the process took place according to democratic values and the electoral laws and regulations of the country and secondly it gave the people information about the process, base on which they could express their opinions. ii. Candidate Registration Period

The candidate registration process commenced, on April 18 and ended on May 8, 2009. During this period IEC provided information to the candidates and then registered them. As planned, the candidate registration process for presidential candidates was held at the IEC headquarters with provincial council registration taking place at the IEC’s provincial offices. FEFA observed the presidential

- 50 - candidates’ registration from its HQ and the registration of the provincial council candidates through provincial observers.

FEFA enhanced the observation skills of its 40 provincial observers and provided them with knowledge of the processes and procedures related to candidate registration process in a-special three- day training. FEFA observers were provided with checklists designed by FEFA national and international advisors. Provincial observers were familiarized with the checklists.

Provincial observers then conducted interviews with 1176 candidates including 30 presidential candidates as well as filling in checklists to ensure appropriate procedures were being followed throughout the process. These details are based on the analyses of data collected through observation of the process and candidate interviews in Kabul and provinces. The primary findings with the amendatory recommendations were shared with the IEC on the 28/4/2009.

Violations observed through the observation process and interviews conducted with 1176 candidates of presidential office and provincial council

1176

Registration package received after April 25

Registration package received before April 25

Misuse of government resources (vehicles, security guards, official time)

Candidates threaten cases

Lack of impartiality of IEC staff & intimidation during registration

Candidates accused of supporting powerful or armed groups

The candidate registration process commenced, as announced by the IEC on the electoral calendar on the 18th of April 2009. During the first phase of this bi-phased process information was provided to the candidates. This phase took place from 18-24 April 2009. The second phase was candidates’ registration, which was between 25th April and 8th May 2009. Based on the IEC’s plan the candidate - 51 - registration process for presidential candidates was held at the IEC headquarters (HQ) and provincial council registration took place at the IEC’s provincial offices.

As FEFA has official authorization and mandate to observe the electoral process, the organization observed the registration process. FEFA observed the presidential candidates’ registration from its HQ and the registration of the provincial council candidates through provincial observers.

Observation Methodology

FEFA enhanced the observation skills of its 40 provincial observers and provided them with knowledge of the processes and procedures related to candidate registration process in a-special three- day training. FEFA observers were provided with checklists designed by FEFA national and international advisors. Provincial observers were familiarized with the checklists.

Provincial observers then conducted interviews with 1176 candidates including 30 presidential candidates as well as filling in checklists to ensure appropriate procedures were being followed throughout the process. These details are based on the analyses of data collected through observation of the process and candidate interviews in Kabul and provinces. The primary findings with the amendatory recommendations were shared with the IEC on the 28/4/2009.

Provinces Date the registration Misuse of Cases of Lack of Candidates accused package received government candidates impartiality of supporting Before After resources being of IEC staff powerful or armed April April 25 threatened groups 25 Badghis 5 31 5 2 1 4 Bamyan 10 26 1 1 Ghor 12 24 5 1 3 Jouzjan 15 26 1 Khost 7 29 1 Kunar 10 26 Nemroz 6 30 1 2 Panjsher 19 17 Samangan 20 16 Takhar 25 11 12 3 13 Baghlan 19 17 8 1 2 Farah 15 21 1 3 Ghazni 20 16 7 Heart 14 22 12 1 3 Qandahar 15 21 Kundoz 16 20 5 1 Balkh 28 8 12 2 Paktiya 13 32 6 1 Parwan 10 26 3 3 1 6 Sar-e Pul 14 22 4 2 1 Zabul 20 16 8 Laghman 15 21 1 4 Badakhshan 20 16 1 - 52 - Paktika 7 29 Faryab 15 21 4 Nooristan 15 21 2 1 Logar 4 32 6 Oruzgan 6 30 3 Kapisa 15 21 Nangarhar 25 11 5 12 Kabul 15 30 Helmand 10 26 470 706 100 18 7 68 1176

Equality of Access

In addition to filling checklists, FEFA observers conducted interviews in 34 provinces with 1176 candidates, including 30 presidential candidates.

The first indication of the lack of equal access for candidates was noted after the interviews. The indicators of this violation include the fact that some candidates did not receive the information package when they should have. The interviews revealed that 40% of the candidates or their representatives were given the registration package prior to 25th of April, in the week of information, and the remaining 60% were only provided the registration package after 25th of April, which is officially the registration period.

This difference in the time of access to information packages resulted in some candidates having more time than others to prepare their application.

IEC's response to this issue was that information packages were sent based on the candidates or their representatives' request, and that those who did not request the package had not received it. Some had not been able to access the forms on the IEC’s website because of unclear direction from the IEC and/or their lack of familiarity with the internet. Based on the interviews, personal relationships had helped some of the candidates receive the forms prior to the 25th of April.

Some provincial council candidates had started printing posters and launched public campaigns soon after the registration process. Two provincial council candidates in Nangarhar province had distributed their printed posters even within the registration office, which results in the objections raised by other candidates. Their argument was that no one had the right to distribute posters or launch campaign prior to the candidate list being finalized by the IEC, which will legally occur after the complaint phase. Disrespecting the electoral calendar announced by the IEC was causing serious damage to the importance of the process. This took place at a time when the IEC had announced that it could not prevent such violations due to a lack of clarity in the electoral law.

Women Participation

FEFA observation indicates that in comparison to the last election, the number of female candidates was higher in most provinces. This year we had two women presidential candidates, 7 vice presidential candidates and 328 women provincial council candidates, a figure that made almost 10% of the total provincial council candidates and was approximately 40 more women than the last provincial council elections. Of the 4.5 million voters who had registered for the first time for this year's polls, about 38% of those new voters were female. - 53 -

However, they faced problems while approaching centers to register, and despite the electoral law provisions, practical measures were not taken to ensure female participation.

Continued security problems and stone-age traditions made equal practical participation of female candidates difficult in the process. Female candidates complained about the lack of female staff in the registration process, especially at the provincial offices of IEC, and they believe that this issue had affected the participation of female candidates in the process.

Political Party Candidates

Our observation of the candidate registration process shows that due to weak political parties in Afghanistan, political party candidates were no better than the independent candidates. The interviews conducted with most of the political party candidates show that ill developed electoral system and regulations is the reason behind low participation of the political parties and or political party candidates. They added that efforts to develop political institutes in the country have been inadequate and the electoral law and the electoral system need to be modified in a way that it encourages participation of political parties.

Irregularities

Misuse of Government Resources and Use of Undue Pressure

FEFA’s observation of 100 individual cases indicated that candidates used government vehicles and guards to attend registration centers. Alternatively, they were escorted by government officials. The majority of offenders in this group consist of current representative in the provincial council and district governors. This problem was observed in the provinces of Nemroz, Laghman, Takhar, Badghis, Faryab, Paktiya, Khost, Parwan and Herat.

Furthermore, in the last three days of the candidate registration phase, separate gatherings with the participation of community elders were held in Nangarhar and Kandahar by government officials in support of specific candidates. These gatherings were broadcast by the national TV also.

The registration process was stopped for 2 hours on May 6 due to the possible registration of Mr. Karzai the incumbent and no other candidate was able to register during this time. Also, on May 7, during Hamid Karzai’s registration it was observed that all the roads to the IEC were closed for 5 hours and no other candidate could go to the IEC for registration. No doubt, a President needs security escort, but it should not be at the cost of impeding the whole process for the sake of one candidate.

Violation of the principle of impartiality by IEC staff

On separate occasions IEC staff was accused of supporting a specific candidate in Parwan, Baghlan, Paktiya, and Nooristan provinces. On 27th April a candidate accompanied by an IEC staff member persuaded other staff that he/she should be allowed to jump the queue for registration.

Also, in Badghis province an IEC staff member was accused of facilitation for a candidate (his brother- in-law). Article 10, sub-article 3 of the Electoral Law bans close relatives of a candidate from being recruited as an IEC staff member. While technically not a violation—brother-in-laws are not listed as family members ineligible to be recruited—the potential for bias is definitely present and FEFA recommends brothers- and sisters-in-law be added to the list of people ineligible to work at the IEC.

- 54 - On Thursday 30th April in Baghlan province a senior IEC official allowed the registration of a candidate to take place after official hours due to an existing personal relationship, while other candidates were sent away for the reason that official hours were over.

On the 7th May in Nooristan province a candidate who had completed the supporters’ forms, but with incomplete finger prints, was registered based on having personal connections with one of IEC staff.

Intimidation of candidates

15 provincial council candidates have indicated in their interviews that they were somehow intimidated by powerful local officials and individuals to give up their candidacy. Interviews conducted with candidates and local people indicate intimidation and influence by powerful local officials and individuals, even in areas fully controlled by the government. Three provincial council candidates, two of them women, gave up their candidacy due to intimidation by powerful local individuals in Takhar province.

A female candidate in Kundoz and another in Parwan claimed that they were intimidated by unidentified individuals, which resulted in them giving up their candidacy. In Sar-e Pul province a male candidate claimed to have given up his candidacy due to intimidation by a current provincial council representative.

A potential female candidate who had previously announced her candidacy gave it up one day prior to the commencement of the registration process because her two sons were kidnapped. Other candidates have also indicated that the kidnapping was the reason she chose not to be a candidate. In Bala Murghab district of Badghis a candidate was forced to give up his candidacy due to intimidation by Taliban.

235 provincial council candidates in various provinces had indicated in their interviews that some candidates had links to armed groups and government officials. These candidates were concerned that if no serious regulations and measures are taken to prevent the influence of armed groups and local government officials, they would most likely not be able to campaign and compete with those candidates who have the ability to intimidate candidates and voters. iii. Campaigning prior to the Campaign Period

Some candidates used the opportunity and ignored the electoral calendar by distributing posters and organizing campaign gatherings prior to the campaign phase. FEFA observers noted that complaints made against early campaigns and campaigners were paid no heed to and no actions were made aimed to preventing early campaigning.

For instance, on June 14, Governor of Farah, in a gathering in his office announced his support for Hamid Karzai and asked the participants to support a provincial council candidate (Haji Basir Khan). This gathering was aired on local TV on 15th June at night. Also, on 3rd June campaign of Hamed Karzai was conducted in Shrine of Emam Ali with the participation of Eng Nasim Mahdi campaigner for Karzai and a presidential advisor, and Haji Mohammad Mohaqiq, member of the Lower House.

Other instance of illegal campaigning activities prior to the start of the official campaign period occurred in the provinces of Ghor, Khost, Nimroz, Hirat, Laghman, Nuristan and Logar. For instance on May 17, 2009 a campaign gathering in support of presidential candidate Imami Ghori was held in Shuhada Mosque located in Cheghcheran City of Ghor Province.

A campaign gathering in support of a presidential candidate Dr Ashraf Ghani Ahmadzai was held on May 13, 2009 in Logar province which was attended by locals in large numbers. The news of this

- 55 - gathering was aired through a local radio channel named Paigham-e-Milli. In another instance in Laghman Province a campaign gathering was organized by the governor of Laghman and his staff in his office in support of Hamid Karzai. The news of this gathering which was organized on April 22, 2009 was aired through a local radio channel. iv. Campaign Period (June 17-August 17)

Based on article 38 of the Electoral Law, the electoral campaign period ran for two months and ended 48 hrs before Polling Day. The Regulation on the Electoral Campaign, passed by the IEC, laid out the rules by which candidates were to conduct their campaigns. In addition all candidates signed a Code of Conduct for Candidates when they were nominated. Any violation of the Regulation on the Electoral Campaign and Code of Conduct was to be investigated by the IEC and/or the Electoral Complaints Commission (ECC).

In order to organize campaign finances, the IEC had approved a Regulation based on which Presidential candidates were required to provide IEC with the Assets and Liabilities Registration form prior to the commencement of the electoral campaign period. These forms and instructions for their completion were distributed to the candidate representatives by the IEC during the first week of June.

The legal framework for this period was shaped by Afghanistan's Constitution and Electoral Law, as well as specific campaign-related regulations such as the campaign bylaws prepared by the IEC and the Presidential Decree No. 38, issued on 20 May 2009, on the impartiality of government employees and institution during the campaign period. In monitoring the adherence to the law, FEFA observed campaign activities and their adherence to this legal framework.

The electoral campaign process provided an important opportunity for both the candidates as well as the voters to exercise their rights, and led to a national debate on social, political and economic issues, thus nurturing freedom of expression. Candidates could promote their policies and secure popularity, while the voters could identify their desired candidate. This made this phase and the presence of a level playing field throughout this phase of critical importance. So what FEFA observed was whether the election laws were implemented with full spirit, whether there was a level playing field or not, and whether the campaign environment was peaceful and safe for all candidates or not.

The information was obtained either through direct observation or through reports that were later verified by our observers in different provinces. They are documented here as an example of the types of problems being experienced but do not necessarily account for all possible violations. Towards the end of the campaign process, IEC had accredited 21 domestic observer groups, 23 international observer organizations, 49 national media organizations, 138 international media houses, 31 political parties. In addition 2671 provincial council candidates and 15 presidential candidates had also accredited agents. In total 250000 agents, reporters, domestic and international observers' badges had been issued.

In spite of a number of security intimidations, threats and attacks, presidential candidates managed to launch their campaigns in most areas throughout Afghanistan.

Considering the intimidations and threats that existed for women and most of the provincial council candidates, it is right to conclude that campaigning environment, in general, was rife with serious restrictions on political freedoms of candidates. This was made worse by the on going operations and Taliban attacks aimed at disrupting the whole election. A sample Taliban statement is given as annex 2.

The long awaited Presidential Decree of May 2009 on Non Interference didn’t help the practice much. (See annex 1) A couple of state officials clearly supported Presidential candidates including Karzai and

- 56 - Dr. Abdullah. For instance, Governor of the Nangahar Province and the IEC Chairperson in Kandahar supported Karzai while the Governors of Balkh and Panshir showed support for Dr. Abdullah.

Government facilities, government vehicles and guards were used at different occasions and there were many instances of presence of candidates, still holding government posts, at official inaugurations of commonwealth projects and at the distribution of government aid to people. For instance, the President of the Ghor Teacher Training Academy Ustad Khan Mohammad led a gathering of teachers held in the academy building in support of presidential candidate Hamid Karzai on June 20, 2009. On the 16 and 17 June 2009, Abdul Basir Salangi governor of Parwan and Sultan Niazi head of IEC provincial office organized a gathering to support Hamid Karzai. The gathering was held in the Governor's house.

Also, on 25th June 2009, during the campaign of a presidential candidate, Sayeed Karim Jalal in Nasaji Club, First district of Pul-e-Khomri city of Baghlan Province, the government-run bus service of Baghlan University was used to bring people to the campaign location. These violations took place despite the regulation to prohibit use of public resources, funds originating from illegal activities or foreign sources, which failed due to lack of enforcing mechanism.

Again the Regulation on Campaign Finance Disclosure did not help limit campaign expenditures, and only could require candidates to inform the IEC on their campaign finances. This obligation however, could not work as a mechanism that could keep a close eye on figures. The regulation did not demand a high enough level of disclosure in terms of the details of candidates’ expenditures or their donations from supporters.

The Electoral Media Commission (EMC) gave out regulations emphasizing fair and balanced campaign coverage for all candidates, however, the Electoral Media Commission established with the purpose of ensuring balanced campaign coverage of all candidates, merely reported of such violations without the sanctioning authority. Not just this, the EMC lacked the ability to request for sanctioning of violating media entities or introducing them to law enforcing agencies for legal persecution. The government owned Radio Television Afghanistan (RTA) and television channels like Noor are included in the list of violating media entities, which were never legally prosecuted for their violations.

While Government media entities clearly favored Karzai and covered his campaign activities widely, or some others provided wider platforms to the candidates of their choice, private and independent media including radios and television channels arranged discussions, debates and roundtables where most of the candidates were invited and therefore, minor presidential candidates were provided with a chance to speak to the nation they were looking towards for votes.

AS per the final lists published by the IEC, there were 41 Presidential and 3195 provincial council candidates competing for 420 seats. Towards the end of the campaign period, seven of the presidential candidates officially withdrew from the race.

FEFA observation of the campaign environment had to focus on was lack of political tolerance and therefore, lack of sufficient security, which greatly impacted both the candidates and the voters. An added angle of disparity observed was between male and female candidates' ability to hold campaign gatherings, especially in remote areas. Women candidates could not have equal level of freedom of movement and were tied within bounds of insecurity and social, cultural, and financial issues.

FEFA observed actions that undermined the fairness of the campaign period and violated electoral laws, bylaws, rules and regulations. These actions included 63 cases of misuse of government resources and official positions to the advantage of specific candidates, 47 cases of lack of impartiality on the part of the government employees; 64 cases of participation of government officials in the electoral campaigns; 17 cases of tearing and destruction of posters and other campaign materials, 12 cases of discrimination and 13 cases of intimidation and bribery from June 16 to August 3. Ghazni

- 57 - topped this list with 25 violations, followed by Parwan with 18, Laghman with 17, Kandahar with 16, Takhar with 12, Baghlan with 10, Bamyan and Kunar with 9 and Herat with 8 violations. In total 216 violations were observed between June 16 to August 3, 2009.

Chart of Violations Campaign Resources

impartiality

Intimidation governmnet of

of Discrimination

of

campaign

State

and

12 in

Material of lack

47 Bribery Destruction

officails Misuse

13 17 Participation

63 64

Bylaws and IEC defined procedures

The electoral process took place under the guidance of the Afghan Constitution, the Electoral Law as well as other facilitating regulations and codes of conduct including the Regulation on Media Commission, Regulation on Electoral Challenges and Complaints, Regulation on Electoral Campaign, Regulation on Political Campaign Finance Disclosure, Media Code of Conduct and Candidates Code of Conduct.

FEFA observed however, that despite a series of regulations, electoral violations continued to happen. Some of the regulations failed to impact due to lack of enforcing mechanisms, while in some other cases, such as the case of the Media Commission, poor relations between the Media Commission and the Ministerial Media Commission in the Ministry of Information and Culture failed violation prevention mechanisms.

FEFA believes that there were enough regulations and laws developed in the light of the Afghan Constitution and the Electoral Law to allow for a campaign period that meets national and international democratic standards. All of the above named Laws and regulations aimed at ensuring a free and fair campaign period. Credible institutions such as IEC, ECC and governmental observing and implementing bodies such as Judiciary existed to monitor and facilitate the campaign process. However, lack of action on the part of the ECC, IEC and Government entities such as those affiliated with the Judiciary failed to prevent electoral violations.

- 58 -

Campaign finance

The IEC issued the Regulation on the Political Campaign Finances which was approved under the authority of the Article 38 of the Electoral Law and in order to avoid violations of Article 53 of the same Law. This regulation required the candidates to provide the IEC with information through the use of the Candidate Asset Registration Form which contained information on the monitory and physical assets of the candidate inside and outside of the country with a value of over 100,000 Afghanis ($2,000).

This regulation also limited campaign contributions from Afghan citizens and registered political parties and banned any such contributions being given by government authorities to the candidate, even if it is the in form of a loan. It further required the candidates to document all contributions, instructing them to provide the contributor a receipt for donations of over 5000 Afghanis ($100) and register details and copy of identification cards (Tazkira) of the contributor in the contribution log when the donation is less than 5000 Afghanis ($100).

This regulation not just required candidates to keep track of what they receive but also of what is being expended with details showing the date of the expense, the amount, the form of it and the details of the receiver. To further enhance this check, the regulation required the candidate to have a separate bank account for this purpose and all payments and contributions exceeding 5000Afghanis ($100).

To help coordinate financial issues in a better way, the regulation required the candidate to have a financial agent whose details should be provided to the IEC. And last but not the least; it required the candidate to report to the IEC, using separate reporting formats for every contribution made to the campaign and for every expense that the campaign may have undergone. In case of difference between the total expense and the total contributions, the candidate was also supposed to report how the deficit may be paid or what plans the candidate has for using the surplus amount.

This imbalance was significantly visible with regards to the campaign finances. This was despite the fact that the Electoral Law banned “offering or receiving a payment or other benefit for the purpose of influencing the electoral process”, “use of funds originating from illegal activities” and “use of foreign funds for the purpose of influencing the electoral process”.

On the other hand, the newly developed IEC regulations demanded candidates to declare their assets worth more than 100,000 Afghanis ($2,000) and have a specified bank account for campaign finances. It also required candidates to keep logs with the particulars of the donors and more detailed and specific records of all donations and payouts of over 5000 Afghanis ($100). IEC regulations further demanded that all these records should be submitted to the IEC within a month of Election Day, with the purpose of being published.

This regulation however, despite terming failure to comply with its provisions an electoral offence, did not help limit campaign expenditures, nor could it work as a mechanism that could keep a close eye on figures.

The general security environment and incidents

Considering the intimidations and threats that existed for all candidates, in particular for women and most of the provincial council candidates, it is right to conclude that campaigning environment, in general, was packaged with serious restrictions on political freedoms of candidates. This was made worse by the on going operations and Taliban attacks aimed at disrupting the whole scenario. There

- 59 - were numerous cases of intimidation and attacks against Presidential and provincial council candidates or their campaign teams. Besides, the IEC Office and the caravan of election material were also attacked in Khost and Farah Provinces in the months of July and August 2009 respectively. One such attack was also carried out targeting the office of the Governor in Zaranj District of Nimroz Province on 24 of July 2009.

Further details of these attacks on Presidential and Provincial Councils as well as government and IEC offices are given in the tables below:

Province Date Nature Location Target Khost 25/07/2009 Suicide Center of Province IEC office Nimroz 24/07/2009 Suicide Zaranj Office of the Governor Kapisa 17/07/2009 Killing Nijrab Candidate registration official Kapisa 19/07/2009 Killing Nijrab Head of Abdullah Campaign

Panjshir 09/07/2009 Explosion Panjshir Karzai Campaign Office Ghazni 01/08/2009 Attack On the Kabul-Ghazni Head of Karzai Campaign Highway Khost 02/08/2009 Road-Side Bak District Vehicle of Karzai Campaign Bomb Kunduz 25/07/2009 Armed Khan Abad District Fahim, first VP of Karzai Attack Laghman 29/07/2009 Attack Dawlat Shah District Abdullah Campaign Team Farah 01/08/2009 Explosion BalaBuluk District Caravan of Election Material Paktika 30/07/2009 Explosion Argoon District Abdullah Campaign Office Badghis 12/08/2009 Kinapping On the way to the Head of Abdullah Campaign office of the Governor Team

Hirat July 2009 Intimidation Hirat City Campaign Office of Shahnawaz Tanai

Province Date Nature Location Target Samangan 18/07/2009 Kidnapping Center of the Province PC Candidate Masooma Hussaini

HIrat 04/07/2009 Intimidation Hirat PC Candidate Sakina Hussaini Jalalabad 24/07/2009 Suicide Jalalabad City PC Candidate Jawzjan 01/08/2009 Kidnapping Darzab District PC Candidate Mohammad Nabi Logar 15/07/2009 Attack Logar PC Candidate Mirwais

Nimroz 02/08/2009 Attack Khashroad District PC Candidate

KUnduz 19/07/2009 Kidnapping KUnduz PC Candidate Zabiullah

- 60 - Kandahar 02/08/2009 Road-Side Zherray District PC Candidate Vehicle Bomb Paktia 02/08/2009 Road-Side Zurmat District PC Candidate Abdul Majid Bomb Badghis 31/07/2009 Killing Aab Kamari District PC Candidate Khost Khost city Female PC Candidate Takhar 04/07/2009 Attack Khwaja Bahawudin PC Candidate Haji Jamshed District Laghman Suicide Mehtarlam city PC Candidate Gulzar Sangrol

The continuous attempts of Taliban aimed at disrupting the election process was effective and rendered parts of the country ungovernable and installing fear in voters. Abduction and assassination of candidates, road blockades and illegal searches were randomly carried out, and explosions, attacks, and distribution of threatening night leaflets were quite common. (See Annex 2)

Televised debates and the media in general

The campaign period of the Presidential and Provincial Council Elections introduced a new culture of political rivalry in Afghanistan. Also, it started a series of national debate on social, economic and political issues, which was a positive step towards strengthening democracy in Afghanistan. These debates were either broadcasted through electronic media or were held at schools and civil society centers. After years of suppression, the people of Afghanistan witnessed leaders being questioned for their past decisions and acts, something unseen in the past of this country.

The pre election debates, which surrounded issues such as the election date, term of the president, his Presidential powers while being a candidate himself and use of State assets in the election campaigning resulting in the absence of a level playing field, led to the development of a culture of political debate, imparted awareness on issues of national importance to people and provided a platform and an opportunity for expression of opinion to everybody in particular the youth.

The most important of the pre election debates was the one surrounding the absence of a level playing field. These debates highlighted some structural problems with the system of governance in Afghanistan such as the absence of active political parties, presence of a centralized system of governance supported and protected by the Constitution and the continued delay in electing representative bodies at sub national level.

Furthermore, these debates linked these issues to the electoral process and came with the analysis that questioned the powers and authorities that the incumbent president had access to. The analysis suggested that these issues combined lead to the absolute absence of a level playing field and therefore an imbalance of opportunities for the candidates.

The overall theme of these debates was not only identifying the problems but also exploring solutions to these problems. Consequently they indicated towards the lack of sanctioning power of authorities issuing rules and regulations, which was one of the reasons why despite the Presidential Decree of May 2009, misuse of state assets and resources continued during the campaign period.

The role that our media played in organizing these debates and therefore creating an environment of debate and discussion as opposed to armed conflict was historical and extremely valuable. Though the conduct of the media had certain gaps as well such as the imbalance in providing coverage to candidates in particular women and lack of sufficient attention given to programs of civic education,

- 61 - the extent to which they participated in the process and provided platforms to all sides was unprecedented.

Evaluating the IEC’s Media Commission and its impact

Article 51 and 56 of the Electoral Law required IEC to establish the Electoral Media Commission (EMC) to function only during the 2009 Presidential and Provincial Council and 2010 Parliamentary and District Council Elections. The EMC was to be established 60 days prior to the Election Day and comprise of five members with a chairman chosen from among its members. The Independent Election Commission (IEC) established a three-member Electoral Media Commission with the task to monitor fair reporting in the media during the election campaign. In particular the Electoral Media Commission:

• Monitors the coverage of the electoral campaign by the mass media; • Addresses complaints that alleged breaches of fair reporting and coverage of political campaign, and other violations of the Mass Media Code of Conduct; • Sets up and oversees a Sponsored Advertising Program that provides each presidential candidate with free-of-cost airtime on radio or television (Note: the EMC did not organize a program in 2009 and instead organized a series of radio and television roundtable debates between presidential candidates); • Verifies the silence period in the media during the 48 hours before the commencement of polling and on E-day.

During the silence period the media was supposed not to cover any candidate’s political activity, or publish or broadcast any results from surveys of opinion, opinion polls or exit polls (in other words, no survey of voters who voted).

During the election process, the media were asked to cooperate with the Electoral Media Commission to inform and educate citizens of Afghanistan on why it is important to vote, the platforms of the candidates, the basic issues of the campaign, and how citizens can participate in elections.

Any registered voter, political party, candidate or their representative could file a complaint in case of violation of the Media Code of Conduct. The complaint needed to be submitted on a form issued by the Electoral Media Commission, signed by the person who witnessed the violation and delivered within 72 hours from the time the alleged violation was witnessed to:

• Any provincial election office, • The Media Commission in Kabul or • The Independent Election Commission in Kabul.

The Electoral Media Commission was to review all complaints and, if necessary, refer them to the Media Commission of the Ministry of Information, Culture and Tourism. At the end of its work, which is no later than 30 days after the election result certification, the Electoral Media Commission was to report on its activities to the IEC. The respective regulation required media to inform and educate the general public on matters and issues of relevance to the electoral process, and stop covering electoral campaigns when there is only 48 hours left to the Election Day.

The EMC was also to receive complaints given on the EMC complaint form and signed by the person who had witnessed the violation. Such complaints were to be delivered to IEC or EMC offices within 72 hours of the time the alleged violation was witnessed. EMC was to submit a final report to the Ministerial Media Commission.

- 62 - There were a few gaps however, that affected the performance of the Electoral Media Commission. To begin with, the EMC lacked the power to sanction. This inability left the EMC with no authority to enforce its decisions and therefore have a more ideal impact on the process.

Secondly, EMC as per the Regulations on Media Commission is to be established no later than 60 days before the Election Day and has to submit its report not later than 30 days after the certification of the election results. This short term mandate of EMC places time constraints on the commission and limits its span of authority.

Finally, a lack of respect on the part of the Ministry of Information and Culture for the role and rulings of the EMC placed serious restrictions on EMC’s performance and ability to rightly act as a more effectual regulatory entity. Besides the August 19 decision of the Afghan National Security Council banning reporting of any violent incidents during polling day, despite government explanations and justifications, came to be nothing but an act in violation of the freedom of expression as well as the due and constitutionally protected right of the Afghan citizens, the right to have access to information.

The gaps affected the performance of the EMC and therefore, despite EMC regulations emphasizing fair and balanced campaign coverage for all candidates, however, media monitoring carried out showed that only four presidential candidates received extensive coverage while others received little exposure. Government media entities clearly favored Karzai and covered his campaign activities widely. However, private entities including radios and television channels arranged discussions, debates and roundtables where most of the candidates were invited and therefore, minor presidential candidates were provided with a chance to speak to the nation they were looking towards for votes.

Irregularities and Violations

There were nine types of irregularities observed by FEFA during the Campaign Period. These include misuse of government resources, presence of candidates who hold Government posts at the official inauguration of international aid projects, lack of impartiality, participation of Government officials in electoral campaigns, tearing and destruction of posters and other campaign materials, presence of Parliamentarians as managers or members of presidential campaign teams, discrimination and intimidation and bribery. Below are few samples of the irregularities:

The first of the violations that occurred during this electoral campaign phase was misuse of government resources for the benefit of a specific candidate. This violation has occurred in various ways including: using government facilities; using government vehicles and guards; presence of candidate(s) still holding government posts in official openings of commonwealth projects; and distribution of government aid by candidates.

This category of violations include instances such as holding a campaign gathering in support of Karzai by President of Ghor Teacher Training Academy in the academy building on June 20, and using the Bibi Haleema School Building to hold a campaign gathering in support of Dr. Abdullah by provincial council candidates Naat Bibi and Zohra Jalal on June 24 in Khost Province. This happened despite the fact that the Ministry of Education had earlier announced that schools and other buildings belonging to this ministry must not be used for electoral campaigns. On June 18, the building of Department for Work and Social Affairs hosted a campaign for Hamed Karzai, and on July 2, a gathering was organised by Abdul Jabar Sabit in the building of Konar Department of Radio and TV where he asked the participants to vote for him. This was followed by the gathering organized by Sayeed Karim Jalal in the Governor’s Office on July 4.

Another serious violation was the presence of candidates with government posts at the opening of commonwealth projects despite the IEC regulations aimed at preventing such actions. Instance of violations observed by FEFA in various provinces include many of which few are given here. On June

- 63 - 23, Sediqa Muradi, a provincial council member and a candidate delivered a speech at a gathering organized in Samangan Province to distribute wheat and dried milk for victims of floods and asked the participants to vote for her so that she can continue the support.

A day before on June 22 in Kandahar Province a number of provincial council candidates attended the official opening of Band-e-Dehli (Dehli dam) such as Haji Sayeed Jan, Nematulla Khan and Haji Ahsan. Basira daughter of Shujaudin, a female campaign manager of Dr. Abdullah who is also a teacher in Taloqan Teacher Training Academy brought her students to a gathering held in support of Dr. Abdullah on July 4 where more than four thousand teachers and students participated during official school hours. July 1 witnessed the participation of provincial council candidates (Jawad Zohak and RAzia Iqbazadeh) in the official opening of Bamiyan Teacher’s Academy for Women, and on June 23, PC candidates Ibrahim Rahmani and Saftar Ali Zareh participated in the official opening of the Daikundi Provincial Hospital, Drug Rehabilitation Hospital and Midwife Training School.

During the electoral campaign phase, it was observed that the principle of impartiality on the part of the officials of entities required remaining impartial. FEFA's observers recorded such violations occurring in provinces across the country. Many high ranked government officials continued to campaign for their chosen candidate from the beginning of the campaign period. On June 19, government officials (Fazel Haq Nejat, CEO of Ghor province; Abdul Hai Khatebi, Spokesperson of the Governor; and the Head of Information and Culture in the province and a number of administrative staff) organized a gathering in the hall of the provincial office for Culture and Information to support the candidacy of Mr. Hamid Karzai.

On June 23, Governor of Balkh clearly announced his support for Dr. Abdullah through the media. Also, on the same day, the Head of Balkh Provincial Council (Farhad Azimi) organized a gathering in the presence of public servants, ordinary people and local journalists in the Shrine of Emam Ali and asked the participants to support the candidacy of Abdullah Abdullah.

On June 19 the Admin Manager of Ali Sheng District of Laghman Province was the organizer of a campaign gathering for a presidential candidate Sayeed Karim Jalal; Government vehicles were also used for this gathering. On July 8, an officer from Nahrin Police Station known as First Commander, originally from Khost Fereng District, distributed posters of Abdul Ghafor, a provincial council candidate, and his brother, in uniform using a government vehicle in Nahrin town. Also the Mayor of Nahrin and a PC candidate, Dr Shokor, campaigned among Nahrin shopkeepers, for which he used governmental vehicles.

Another aspect of this violation was the participation or presence of government officials during official hours in the campaign of candidates. These instances include the participation of two district governors in a campaign gathering in support of Karzai organized by Head of Nangarhar Provincial Council in Jalalabad on June 18, and of Zabi Jayhoon, Head of Education Department of Badghis; Mohammad Yaqoob, Badghis representative in the Lower House; and Mohammad Khan Moqur District Governor, and Sayeed Rasoul staff member of NDS in the July 7 campaign gathering of Dah Bereng village, Qades district of Badghis Province in support of Karzai.

One other electoral violation that has been observed by FEFA is the tearing down of posters and campaign materials posted on private or government properties without prior consent. Various such cases were observed and recorded by FEFA.

In one instance, Badghis National Directorate of Security (NDS) beaten up and held supporters of Dr Abdullah for posting his poster higher than Karzai on June 22, while campaign officials of presidential candidates were witnessed posting their campaign posters on top of provincial council candidates' posters in Farah and Zabul Provinces. Balkh province witnessed the systematic tearing down of posters

- 64 - of Hamed Karzai during the night by unknown persons; local people interviewed by FEFA observers claimed that people from governor's office were responsible for these destructions.

On June 27 in Baharak District of Badakhshan Province, a police official tore down some candidates’ posters (Mahboobullah Koshani, Abdullah Abdull, Hamid Karzai) in full view of public. When investigated, he claimed that these candidates do not respect Sharia laws. Security officials imprisoned him and prevented him from working for three days. We also observed that walls of most schools and the eastern entrance door at Takhar University were covered with posters of Dr Abdullah Abdullah and provincial council candidates. This was despite Ministry of Education's earlier announcement, and the standing electoral law and regulations, that using ministry's facilities and dependent buildings for campaign was illegal. A fight erupted between the supporters of Dr. Ahmadzai and Hamed Karzi where the former wanted to post Ahmadzai's pictures on the gates of Dosad Bestar Hospital on June 29.

From the start of the electoral campaign FEFA observed a number of cases where government staff had ignored principles of equality between candidates and discrimination has been evident in their actions. For example a few presidential candidates chosen by the mayor had the opportunity to post their posters in the places and on the big, government owned billboards in highly populated areas of the city in Baghlan Province. This is at a time when other candidates had requested that the presence of their posters be allowed in these areas but equal opportunity was not afforded to them. Mayor claimed that agreements were signed with the candidates who have their posters up.

On 9th July Karzai's Campaign Team organized a gathering in Pul-e-Khomri Sport Stadium. Mr Khalili, Vice President; Zulmai Mujadidi, Commander Almas and a few others came to Pul-e-Khomri by helicopters and landed next to the stadium, where the Baghlan Governor and other government officials were there at 10:10am to meet and welcome them. The guests did not go to the campaign location. Haji Hazrat, Deputy of the Education Department; Mohammad Zaman Zamani, Education Planning Manager, and a number of school principles who had also brought some of their students (girls and boys), were busy in the coordination of the above mentioned gathering. The head of Baghlan Radio and TV (Karim Shahin) was busy in campaign affairs as a journalist and he told the Manager of Bakhtar News Agency that he is campaigning for Hamed Karzai. Habibullah Ramin and Shukria Esa Khail, both members of the Lower House, and Senator Nazar Mohammad were present as the main organizers and also had speeches in favor of Mr Karzai.

In another instance on 28th June the electoral office in Nangarhar sent invitations to all provincial council candidates to attend a gathering in the province hall. This gathering was organized to discuss safety measures that can be taken by candidates. At this gathering, candidates who had government posts were treated was given VIP treatment. Also, officials of Sherzai stadium in Jalalabad city, a publically owned building, did not allow posting of any other posters except those of Hamed Karzai for most of the campaign period.

FEFA observed many cases of intimidation and bribery. On 23rd June in Qala-e-kah district of Farrah province, three guards of a provincial council member (Haji Rahim Gul) - who was also a candidate - threatened supporters of another candidate (Ahmad Roufi, PC candidtate) to stop supporting Roufi and distributing posters for him.

Also, on June 24, two provincial council candidates (Haji Falaqnoz and Sameh Ullah Nasrat) gave cash to the participants during a joint campaign gathering in the building of Batikot High School in Nangarhar Province. Sakina Hussaini, a provincial council candidate in Herat, claimed that she was threatened on the night of July 5, when wanting to go to Kora Mili area in Jebrayel. She had received a call from 0772 830 501 which had asked her not to go out of her area for campaign. She accused Mr Zareh Haqjo, the then Provincial Council Secretary and a candidate. She said: Mr Zareh Haqjo had also

- 65 - threatened the landlord of her campaign office asking him to cancel their lease agreement and do not allow her to campaign from that location.

Despite the constitutional Article 152 (The President, Vice Presidents, ministers, heads and members of the National Assembly, the Supreme Court, Attorney General and judges, cannot undertake other jobs during their terms of office) FEFA observed many parliamentarians, served as manager or member of presidential campaign teams. While FEFA can not in all cases confirm that these parliamentarians received payment for these campaign efforts, many worked on the campaigns during official hours and/or there was strong evidence pointing to them receiving payment for these activities. On 30th of June Shuja Malik, parliamentarian and member of Karzai's campaign, had a meeting with students in Kunar Province and asked them to support Mr Karzai.

On 1st July a gathering was organised by Dagarwal Shah Mahmood where he asked people to support Mr Karzai. On 13th July the provincial office of Department of Borders in Konar province organised a huge gathering on behalf of the Gojar tribe of Konar where a number of provincial council members including their head, Mawlawi Ezatullah, and two parliamentarians, Haji Sakhi and Malalai Shenwari participated. The speakers Mawlawi Ezatullah, Haji Sakhi and others declared their preference for Mr Karzai compared to other presidential candidates and asked people to vote for him. v. The calm period

The electoral campaign for Presidential and Provincial Council elections 2009 started on June 16 and concluded on Monday August 17 at 12:00pm. Based on the electoral law the continuation of campaign after the mentioned time and date was to constitute an electoral violation.

FEFA however observed that certain candidates or their supporters committed this electoral violation and continued to campaign during the calm period as well. For instance, on 19 August, campaigners of Dr. Abdullah and a provincial council candidate Mohammad Yahya Chemran in Sar e Pul Province were collecting people and taking them from Tarkhoj to a place of worship, apparently for worship but were campaigning in favor of their candidates. There were numerous instances of new candidates' pictures and posters being posted on government offices and residential houses.

Mohammad Ibrahim Chah Aabi District Governor of Baharak District of Takhar Province had not just continued to campaign for Hamid Karzai, but also had asked FEFA Trainer to join him in. On August 18, Acting District Governor of Kalafgan District of Takhar Province Ghulam Muhaiuddin campaigned in favor of Dr. Abdullah, while in the same district a provincial council candidate Mawlawi Abdul Wahab campaigned for himself on the same day. d. Election Day 2009

FEFA observation covered up to 60% of the country. The Election Day observation procedure was designed such that FEFA observers had three reporting forms, each related to the opening, duration, and closing of the polls. Observers documented their findings about the opening, duration and closing of the polls. Besides, on the Election Day, we received—through SMS--reports about the situation as the polls opened and closed. FEFA observers were trained in reporting via SMS through a pre-designed and coded template. These facts received from FEFA observers on the Election Day are compiled in a database. Zonal Deployment details are given below:

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Though, based on the analyzed results of our checklists, the overall conduct of the polling stations was judged to be good, with almost 70% ranging between good and very good on the scale, the SMS reports received reflected the problems with the polling stations' performance. While, based on the checklists, the secrecy of the vote was ensured in 90% cases and there was satisfactory – 65% - presence of domestic observers and candidates' representatives, SMS reports revealed that 640 polling centers were without observers from other entities or without candidate agents. - 70 -

The checklist data shows that over 80% of the polling stations opened on time and only 15% of them did not. This 15% included the 1258 late opened stations as reported through SMS; no information could be obtained about the remaining 5%. There were also questions raised on the durability of the indelible ink used to mark voters’ fingers in 159 polling stations throughout the country, which caused concerns. Based on our report, 476 polling stations across the country did not have any female staff and in 856 polling stations staff or material were missing. Another 432 polling stations were inaccessible.

Further more reports were received on certain polling stations not following regular closing procedures. There were a total of 834 such polling stations all across the country. There were reports received about interference of local IEC staff in the voting process and on their lack of impartiality. In some parts incidents of male proxy voting for female voters, an issue to be discussed in further detail, were reported and fewer female polling stations opened than initially planned. These were in addition to the problems caused when the decision to extend the voting time from 4pm to 5pm was taken.

We not only observed the conduct of the elections on the polling day and throughout the election process, but also volunteered to inform ECC and IEC and as a result assist them in their correction process of technical issues. For instance while we received 3913 reports of irregularities and voter fraud on Election Day as an observing entity, we communicated to ECC only 466 verified cases in their standard format. Our early morning reports to IEC regarding the issue of punch machines and indelible ink assisted them in addressing it on time and extensively reducing the instances of these two creating a problems. i. Election Day observation methodology

The observation carried out by FEFA covered 60% of the country. On the Election Day, every FEFA observer was tasked to send three sets of reports each covering the opening, polling process, and closing of the polls. These facts received from FEFA observers on the Election Day are compiled in a database.

Another tool used on the polling day was receiving reports through mobile phone SMS. We had completed the rehearsal of the Election Day Reporting Mechanism by mid August 2009 and were ready with the SMS reporting scheme. These reports gave information on the situation as the polls opened and closed. FEFA observers were trained in reporting via SMS through a pre-designed and coded template.

SMS Template Response Format 1. How many centers lack female staff? A. Kabul 2. How many centers were opened late? Dr. Nessar 3. How many centers lacked staff/ material? 1. 3 4. How many centers had ink problems? 2. 5 A. Opening 5. How many centers are inaccessible? 3. 2 4. 7 5. 12 1. How many centers were closed late? 2. How many stations did not follow proper closing procedures? B. Kabul 3. In how many stations observers and political Dr. Nessar party agents were not present? 1. 5 B. Closing 4. Approximately how many voters came to the 2. 6 voting centers under your observation? 3. 2 4. 200 - 71 -

On the Election Day, two staff from the FEFA Head Quarters were accredited for the Tallying Center and the Media Center. In addition, four teams each composed of two reporters, one data entry assistant and one team lead. Analysts were connected via phone and internet to 34 FEFA representatives around the country. These teams were requesting telephonic reports directly from observers and their district and provincial coordinators.

Operations Room

The operations room was set up at the head quarters of FEFA in Kabul. We had divided the core team into four groups, with specific task allocations. Each team was responsible for a particular number of provinces and was in constant contact with provincial managers following a pre set schedule of activities.

Every team had a computer operator who was tasked for entering data and reports receiving from provinces. These teams were reporting to senior FEFA officials.

We also had designated two FEFA staff as focal points that were keeping another channel of communication active with provincial and district managers and were reporting only on issues of prime concern. These reports were called quick reports which were then given to senior officials who were, without a delay, using those data for drafting FEFA official statements and reports to be sent to IEC and ECC.

Due to higher demand for information by international stakeholders, FEFA established one point of contact for international stakeholders in order for them to receive information on designated times. In addition two people were assigned to monitor media reports during the Election Day. ii. Observations

Opening of polling centers

Based on data gathered through checklists, more than 80% of the polling stations opened on time throughout the country. In some parts of the country however, the security situation affected not just this process but also our ability to observe. On very rare occasions, our observers could not continue their work. This situation affected polling stations as well. FEFA observed that throughout the country, 1258 polling stations did not open on time, mainly due to factors such as last minute relocations of polling centers, last minute administrative and technical issues, and security concerns. FEFA observers reported cases of temporary and sometimes early closing of polling centers due to security incidents or disregard for established procedures by IEC field staff.

The number of late opened polling stations was highest in Kabul as compared to all provinces with 324 in number. Second highest province with polling stations that opened late was Badghis, where the number was 283. These two were followed by Farah 120, Kandahar 80, Logar 43, and Baghlan 42 late opened polling stations.

One of the early issues faced at polling stations was that of the indelible ink and punch machines. FEFA sent its first set of reports to IEC around 08:30am identifying polling stations with such problems, on which IEC generally took timely steps. Despite IEC efforts, this problem delayed the voting process or caused the closure of polling centers in some provinces. Furthermore, our data shows that a total of 159 polling stations faced this problem, where provinces of Badghis and Parwan topped with 30 and 25 polling stations respectively.

- 72 - As discussed earlier each FEFA observer had three checklists to fill. One of these checklists acquired data on the conduct of the process during the opening of the polling centers. As a result of this mechanism FEFA receive a total of 3995 filled checklists.

The figures coming from the checklists that are analyzed in a database show that our observers noted 347 cases where IEC officials did not record the number of ballots and the serial numbers on the hand over forms.

The same data suggest that at the opening of the polling centers there were 1173 instances of missing essential material which included 156 cases of ink, 152 cases of ballot box, 181 cases of ballots, 151 cases of voting screens, 154 cases of stamps, 211 cases of seals, and 168 cases of forms missing.

In addition there were 229 cases of lack of secrecy, 131 cases of not recording number of the ballot on the reconciliation form and 77 cases of ballot boxes not secured properly.

Voting process

Early in the Election Day, FEFA received and shared with the IEC reports from fifteen provinces about malfunctioning punches—to mark used voter registration cards—in polling stations. IEC reacted during the morning hours with instructions to polling staff to use scissors to cut the edge of voter’s registration card. Questions about the durability of the indelible ink used to mark voters’ fingers caused concerns as well in 159 polling stations throughout the country. However, unlike the 2004 Presidential Elections, reports indicated that the ink reemerged after attempts at washing it off.

Further more reports about improper interference by local IEC staff with the voting process and on the impartiality of some IEC local staff constituted a trend that persisted throughout the electoral process. As had been predicted with concerns, female electoral staff appeared absent at many polling centers throughout the country. In parts of the country, FEFA observers reported incidents of male proxy voting for female voters. Fewer female polling stations opened than initially planned. Besides, once the decision to extend the voting time from 4pm to 5pm was taken, it reached polling stations late, creating extra confusion at the polling stations.

In some parts of the country, the powerful supporters of at least two presidential elections candidates, had also—directly and indirectly—tried to force people into voting for their preferred candidates. These incidents were taking place when a total of 460 polling stations had no observers or candidate agents; reports of these incidents were collected by FEFA observers from the local population, but were not directly observed by FEFA. The highest number of such polling stations was highest in Parwan with 282 followed by Badghis with 90, Herat 66, Kabul 41, Khost 32, Paktia 24 and Kandahar 10 polling stations. Where national or international observers were absent from polling stations, the potential for fraudulent behavior to occur greatly increased, affecting particularly the female polling stations where female voter turn-out was the lowest and fraud was easiest to perpetrate.

Closing of polling stations and the counting process

Some instances reported relate to the violation of established procedures, and these include the early closing of some polling centers and in cases the start of the counting process even during the first hour of the afternoon of the Election Day. This was observed in at least three provinces that include Ningrahar, Takhar and Kunduz. In Kunduz, the polling station was closed at 1:00 pm and counting was started.

On the other hand, our SMS reports indicate a total of 298 polling centers allowed people to vote that were not in the queues by 5pm, which is a violation. Among these, 57 polling centers closed late in Herat, 36 in Baghlan, 27 in Laghman, 24 in Paktia, 19 in Sar e Pul and 10 in Nimrooz province. Based

- 73 - on the same data, 834 polling centers did not follow regular closing procedures while closing; for example, IEC officials did not show the ballot papers and materials to observers, or in some cases they closed early. In this list Kabul had the highest number of polling stations closed without due procedures with a number going up to 273 followed by Paktia with 106, Laghman 95, Baghlan 50, Balkh 50, Faryab 48, Ghor 41 and Farah 23 polling centers closed without following due procedures.

Voter turnout

Female voter turn out was low in general. While it was higher in central northern regions where the threat and capacity to operate for the insurgency was lower, in other areas it suffered greatly due to a number of factors such as the low numbers of the IEC female staff, lack of voter education and information, cultural factors, and severity of violent threats.

On some occasions, when female voters approached the station and noticed there was no female polling staff, they left without voting. In some instances, even FEFA’s female observers had to leave the stations because men were operating female voting stations. Our SMS reports indicate that a total of 476 polling stations did not have any female staff at all, with another 856 polling stations missing parts of its staff.

Female polling centers have different trends depending on whether they are in rural/urban areas, and also depending on the region of the country. In the rural areas the turn-out, according to our female observers' reports, should be expected to be lower than in the provincial capitals.

An example of this fact for the southern provinces, based on the reports we received so far, can be cases like Kandahar or Helmand, were women appear to vote in the capital center of the region but did much less voting in the surrounding countryside districts of this same region. Badghis in the north-west is another example of a similar situation since the voting turn out for women will be higher in Qal-e Naw; while Qadis and Ab kamari district should have lower turn-out; Muqur, for instance, had no polling center open for women.

Location of the polling center was another factor discouraging greater women participation. There were districts, such as Muqur (in Badghis) or entire regions like Paktika where there were no polling stations open for women. Or cases like Bamyan where the women were interested in participating in the elections but the polling centers for women were low in numbers and inaccessible for many of them, as those were too far away from their houses. As per our data, a total of 432 polling stations were inaccessible by voters, in particular women. In this list, Daikundi and Kabul provinces topped with 120 and 117 polling stations respectively.

Low turn-out of women voters in the capital city, Kabul, is an example of this country-wide trend. The FEFA mission analyzed different polling stations relating time of the day and amount of citizens coming to vote to different polling centers where there were observers from the FEFA mission. To give an example, while at 12:00 a.m. in a polling center in Abdulallih Mustahni School, with five male polling stations, men's turn-out was 608 male citizens. In this same school with four female polling stations, the turn-out for female voters was only 108.

Lack of information and voter education was another reason affecting the voter turnout. During the lead-up to the presidential elections voter education for females was problematic in regions or districts where insurgent forces were strong. This rendered the IEC unable to develop civic and voter education trainings properly. There were more training sessions in the provincial capitals, and lower in the surrounding district rural areas. In some cases, women were keen to vote but did not understand the electoral process and therefore declined to exercise their right.

- 74 - There have also been reports of IEC workers' lack of preparation to help women vote according to the rules and regulations of the IEC itself. Such cases have been reported for Bamyan where women´s education level is low. v. Irregularities and Violations

Our observers on the Election Day reported 3913 cases of irregularity and violations. These included 200 cases of intimidations, 1014 cases of lack of impartiality on the part of the IEC staff, 519 cases of multiple voting, 370 cases of underage voting, 865 cases of continued and close to polling centers campaign on Election Day, 247 cases of proxy and group voting, 238 cases of State authorities' interference, 95 cases of eviction of observers, and 365 cases of voter fraud.

Observed Irregularities and Violations on Election Day

1200 1014 1000 865 800 600 519 370 365 400 247 238 200 200 95 0 Lack of Impartiality1 Campaign on E Day Multiple voting Underage voting Voter Fraud Proxy voting

- 75 - Observed Irregularities and Violations on Election Day

Lack of Impartiality

5% 2% Campaign on E Day 6% 27% Multiple voting 6% Underage voting

9% Voter Fraud

Proxy voting

9% State authorities' 23% interference Intimidation 13% Eviction of Observers

Since individual irregularities or isolated incidents of fraud may not affect the election results, it is important to see patterns of irregularities that demonstrate large scale, organized fraud, affecting the election results. As the charts above show, the existence of numerous cases of one type of irregularity thus giving rise to similar complaints over a broad geographical area shows that it took place in a pattern and was not an isolated individual case. For instance 1014 cases of intimidation show that this problem prevailed in many locations, thus giving rise to a pattern strong enough to alter the election results significantly.

These irregularities and violations include:

Intimidations

Cases of intimidations recorded by FEFA on Election Day related to direct intimidation by Commanders and/or influential provincial council candidates, which were not widely reported by media. Provincial council and presidential candidates in several parts of the country used extensive intimidation of voters as means of securing support for themselves. . They either deployed their armed gunmen around polling centers, who were directly and indirectly forcing people to vote only and only for them, or they were themselves present at the polling center asking people to vote for them.

FEFA observers noted a total of 200 cases of intimidation which included 56 fully verified cases in provinces of Faryab, Farah, Logar, Balkh, Jawzjan, Kabul, Parwan, Uruzgan, Ghor, Takhar, Zabul, Herat, Nimroz, Paktia, Nangarhar, Kandahar and Bamyan. Fully verified cases included enough evidence that FEFA was able to submit information to the IEC and ECC about the case.

In one instance in polling center 056 located in Faryab Province, Rahmatullah a Provincial Council candidate was observed to personally force voters to vote for him. IEC officials were observed to have taken no action to stop this despite observers reporting this issue to them.

- 76 - In one instance in Spin Boldak of Kandahar Province, FEFA observers were forcefully evicted by armed supporters of Abdul Raziq a local commander. FEFA approached IEC and discussed the issue with their Head of External Relations, however, they could not offer any help.

In another instance in polling center 1401002 located in Hirat Province, the Principle of Gawhar Shad School had threatened the polling center officials while Minister for Power and Water, Ismael Khan had visited the polling stations of Gawhar Shad Polling center in Hirat with his armed bodyguards without having a legal authority to do so.

In polling center number 1509085 of Farkhar District of Takhar Province, armed supporters of a provincial council candidate Roshan Khan threatened voters to vote for him and even fired to shots on a voter as well.

In polling center number 038150 located in Parwan Province a FEFA trainer was threatened by Siddique Usmani a Parliament Member on behalf of Karzai Campaign team representative named Mangal to not report his observations.

In polling center 1001001 located in Nangarhar, a provincial council candidate Baryalai severely beat an IEC official Sher Faqir which led to the recount of ballot boxes. Several cases of voters forced to vote for Karzai was noted in the Province of Nimrooz, where in polling center number 2604032 District Governor's people had forced voters to vote for Karzai.

In polling center 03010128 located in Osian District of Parwan Sardar Agha and Nayeb local commanders brought people forcefully to the polling center and forced them to vote for a particular candidate.

District Governor of Khwaja Bahawudin District of Takhar Province in polling center 1514160 not only campaigned in favor of Dr. Abdullah and Haji Jamshed a provincial council candidate but also intimidated and physically beat IEC officials.

In polling station number 03 located in Qalat City of Zabul Province, a provincial council candidate Abdul Baqi HAidari forced voters to vote for Karzai.

IEC officials of the female polling stations in Aqkaparak District of Balkh Province were threatened by Senator Haji Abdul Ghani and his armed gunmen to force voters to vote for Dr. Abdullah.

Lack of IEC staff impartiality

Another widely observed irregularity was that of the lack of impartiality of local IEC staff. FEFA observed a total of 1014 cases of which 102 were fully verified occurring in many places, including Takhar, Balkh, Nimroz, Bamyan, Faryab, Hirat, Kunduz, Kandahar, Paktia, Laghman, Kapisa and Nangarhar.

There are many instances of lack of IEC staff impartiality. For example, in polling center 022 located in Aqkaparak District of Balkh Province, IEC officials were reportedly accompanying voters to the ballot box and encouraging them to vote for Dr. Abdullah. In another instance in Hesa e Awal e Kohistan District of Kapisa Province, IEC officials showed favoritism to Dr. Abdullah.

In one instance in a female polling station located in Gulkar of Paktia Province, IEC staff went out and talked to the candidate agents and made an agreement. Once they returned, they cast 20-30 votes in favor of their candidate. Also in the Sayed Karam District of the same province, while no voters were present at 04:00pm, IEC officials marked 10-20 ballot papers and put them in the ballot box.

- 77 - In another instance, IEC officials in in polling station 0205067 located in Kapisa province were encouraging voters to vote for Hamid Karzai, while in the same province in polling station 0203031 IEC officials were encouraging voters to vote for Dr. Abdullah.

Also, in polling center 149 and 151 located in Daikundi province IEC officers were actively supporting the candidacy of Riza Hekmatyar a provincial council candidate or in another case the chief of a female polling station was the wife of a local Provincial Council candidate.

In polling center 2002034 of Aaqcha District of Jawzjan Province an IEC official called Geeta continuously campaigned for Dr. Abdullah; she was not stopped by other IEC officials despite protest by the observers.

Head of the polling center 1701197 located in Rustaq Abad of Kunduz Province campaigned in favor of Dr. Abdullah while Provincial director of Ministry of Women Affairs Nadira Giah disturbed the voting process in polling center 1071012 located in the same province from 07:00AM to 11:45AM asking people to vote for Karzai and a provincial council candidate Mosa Farkhari.

In the same province, five IEC officials and head of the polling center 0300103 continuously encouraged voters to vote for a provincial council candidate named Tawfiq despite protests by the observers.

In polling center 1401019 located in Faiz Abad City of Badakhshan Province, Nafisa Zaki Principal of the school where the center was located and also a provincial council candidate campaigned for herself on the voting day and with the help of the IEC officials had many under aged voters vote for her.

In another instance, the head of the polling station 01 of Mughlan secondary school in polling center of 1513152 located in Yangi Qala District of Takhar Province, Mawlawi Qyam U Din Keshaf, was observed to have forced voters to show their ballot papers to him while he had thick marked Dr. Abdullah's name on the ballot paper.

In polling center 2401010 in Hirat City of Hirat Province deputy head of the polling center who also was the principal of the school campaigned in favor of Karzai.

In Zekreyayi Foladi Mosque polling center 3201007 in Bamyan Province an IEC official campaigned for Dr. Abdullah and a candidate agent named Masooma Sadiqi took advantage of lack of education of voters and encouraged them to vote in favor of Jafari.

Also in polling center of Sayd Rajab 003 of Maimana City of Faryab Province IEC officials without paying a heed to the protests of the observers voted many times, an evaluation of which at later stages revealed that votes were given in favor of Karzai.

Multiple voting

FEFA observed 519 cases of multiple voting of which 45 were fully verified. Instances of multiple voting were noted in provinces of Faryab, Nimroz, Badakhshan, Paktia, Takhar, Parwan, Farah, Laghman, Kandahar, Ghor and Zabul.

One of the major instances of multiple voting was observed in Parwan Province, where the Governor himself, in the presence of IEC officials and police, voted 20 times for Hamid Karzai.

In another instance in polling center located in Alawudin High school in Cheghcheran District of Ghor Province one person voted five times who was then arrested by security officials.

- 78 - In polling center of Khwaja Murad Kot 047 in Pashtun Kot District of Faryab Province Sher Mohammad Mohammad brother of Hayatullah Surkhabi a provincial candidate acquired many ballot papers and voted many times in favor of his brother.

In polling centers of 336 and 2401229 of Kuhsan and Shindand Districts respectively located in Hirat Province it was observed that voters voted many times.

In polling center 1501009 located in Takhar Province Sayed Abdullah a voter showed seven voting cards to the observers and confessed that he voted seven times.

In polling center 1203068 of District Aleengar of Laghman Province one person voted six times and everyone could vote more than once, this problem continued from 07:00 am to 04:00pm.

In polling center 1401014 located in fourth Nahia of Faizabad City of Badakhshan Province there were instances of multiple voting as IEC Officials were not just ignoring the practice but also aiding it. Also in the male polling stations of the same polling center, Esmatullah agent of presidential candidate Ashraf Ghani Ahmadzai encouraged voters to vote many times in his favor.

In polling center 06 Qalat District of Zabul Province women voted many times, once early in the morning and again later in the day after covering their hands with Henna, a material that colors the hands and renders the indelible ink invisible.

In polling center 0303053 located in Jabul Saraj of Parwan Province ballot boxes were not stamped and instances of multiple voting were observed and no attention was paid to the protest of the observers.

Underage voting

Underage voting was another irregularity observed by FEFA with a total of 370 cases of which 57 were fully verified. This irregularity was also observed during the voter registration period. Since there were several instances of under-age registration, we expected to observe this irregularity on Election Day as well. This irregularity was observed in provinces of Parwan, Faryab, Nimrooz, Laghman, Paktia, Khost, Balkh, Farah, Bamyan, Uruzgan and Kandahar.

In polling center of Jame Mosque of Pul e Rangina with code number 2401014 and polling center 2402037 of Engelif District of Hirat Province underage voters voted throughout the polling day.

In polling station 002 located in Trinkot of Uruzgan, polling center 0901022 located in Khost province, in polling centers 1202043, 1202044, 1302049 located in Laghman Province and polling centers 0308145, 0308143, 0308150 located in Parwan province instances of voters voting under the age of 18 were observed.

In female polling centers 2601001, 2601004 and 2601009 many instances of underage voting was observed. These polling centers are located in Zaranj city of Nimroz Province. Also, in the same province in polling centers 2602014, 2602015, 2602016, 2603024 many voters were under the age of 18 but they were still allowed to vote.

Instances of underage voting were observed in provinces of Farah, Balkh and Parwan. These included polling centers 030004, 0308144, 0310133 in Parwan, polling centers 287, 076 in Balkh and polling centers 01, 062, 088, 2501003 in Farah.

- 79 - Forced Evacuation of observers

Another category of irregularities is that of forced evacuation of observers noted in provinces of Parwan, Faryab, Nimroz, Laghman, Paktia, Khost, Farah, Nangarhar, Badakhshan, Balkh and Uruzgan. The total number of observed cases was 95 of which 12 were fully verified.

Instances include illegal evacuation of FEFA observers from polling center 2602015, 2604032 in Kung District of Nimroz Province from the start of the polling till 2pm while representatives of Karzai were only allowed to stay in the polling station.

In polling centers 025, 024 and 023 IEC officials and a provincial council candidate from Doaaba District of Nuristan province forcefully evacuated all observers including FEFA observers.

In Polling center 290729 located in Safa City of Zabul Province FEFA observers and other observers were forcefully evacuated because they protested on instances of multiple voting.

In polling center 08011196 located in Ahmad Abad of Paktia province a person came with 600 cards to vote on behalf of everyone, when observers protested, IEC officials forcefully evacuated all observers and allowed the person to vote on behalf of 600 persons, once his voting was done, observers were allowed to re-enter the places.

Other instances of forced evacuation of observers were noted in provinces of Parwan, Kapisa, Bamyan and Nuristan. In Parwan polling center 0301005, in Kapisa polling station 0205067, in Bamyan polling center 3207119 and in Nuristan polling station 1303025 and polling center 024 and 023 observers were forcefully evacuated after they protested to election irregularities and violations.

Campaign on E-day and close to polling centers

Another irregularity that FEFA observers reported was that of the continuation of campaigning during the voting period. The total number of such cases noted was 865 of which 68 were fully verified. Instances were noted in the provinces of Hirat, Faryab, Nuristan, Nimroz, Zabul, Parwan, Kapisa and Bamyan. When we observe the whole process, our standards are determined by the procedure, bylaws and principles that are applicable to the elections. Based on these regulations and procedures, the continuation of campaigns during the Election Day is prohibited and illegal.

In many centers our observers noticed Provincial Council candidates and their supporters actively campaigning. In some provinces people were handing out campaign materials such as posters and cards. No efforts were made to stop these irregularities. This was either because there was a lack of instruments to do so, or the people involved were the influential and powerful locals. In polling center 2401007 located in Aatifi School of Hirat City, one of Dr. Abdullah's agents named Shukria Salarzai had placed Dr. Abdullah's picture on his shirt in a way as it was visible to all voters. IEC officials did not stop her despite the protest of the observers.

In polling center 148 located in Shirin Tagab District of Faryab Province it was observed that the pictures of Haleem Bi a provincial council candidate was distributed amongst the voters by his supporters and IEC officials did not stop them despite protest by the observers.

In polling center 2402036 located in Engeel District of Hirat Province it was observed that pictures of Dr. Abdullah and Sayed Waheed Taqali a provincial council candidate were placed inside the polling center. Officials of the IEC took no action on the protest of the observers.

In polling stations 05 and 06 of polling center 150 located in Daikundi Province campaign in favor of Reza Hekmatyar a provincial council candidate by his supporters continued throughout the polling day.

- 80 -

In polling center 2701010 located in Lashkargah of Helmand Province a group of Dr. Abdullah supporters continued to campaign for him throughout the polling day.

In polling centers 1204088 and 1204087 located in Laghman Province campaign continued in favor of Karzai throughout the polling day.

Proxy and group voting

Our observers also reported large numbers of cases of proxy voting, as a trend in the irregularities during the Election Day. In total 247 cases of proxy/ group voting was observed of which 47 were fully verified. It was observed in many forms, including men voting for women, one person voting for another or one person voting for a group of men and women.

This violation which was also predicted to happen as voter registration cards were given in groups, and many people received more than one card, was spread all over, and instances of it were seen in many provinces including Faryab, Kunar, Kabul, Paktia, Laghman, Paktika, Logar, Kapisa, Kandahar, Nuristan and Balkh.

For instance, female polling stations did not have any female staff, and therefore men were voting on behalf of women. Also, a local commander in Kunar Province named Jandad brought a list of voter registration cards and voted on behalf of many.

Instances of proxy voting were noted in Mirwais Mina and Langar Durani Districts of Kandahar. In polling station 1112089 located in Chawki District of Kunar Province Jandad a local commander brought a list containing ballot paper numbers and voted on behalf of locals for his favorite candidate.

In the same province in polling center located in Jamiat High school Mawlawi Shahrzada Parliament Member from Kunar and Imroz Khan a provincial council candidate brought lists of ballot paper numbers and voted on behalf of locals through them.

In polling center 0101271 located in 13 Nahia of Kabul Province Karzai campaign continued and his supporters brought voter cards and voted on behalf of people in favor of Karzai.

In another instance in polling stations number 0101271 located in Imam Khumaini Mosque in 13 Nahia of Kabul Province, voter registration cards were collected by one person who voted on behalf of everyone.

In polling station 0205074 and 0205067 located in Kohbandan District of Kapisa Province instances of men voting on behalf of women was noted by our observers.

In polling center 1201002 located in Mehtarlam of Laghman Province a woman brought more than 200 voter cards and voted on behalf of others. This happened despite protest by the observers to which no heed was paid by the IEC officials.

In polling station 0901021, 0908122 and 0909078 located in central Khost province, voter cards of women were brought and votes were given on their behalf.

In polling center 08011196 located in Ahmad Abad of Paktia province a person came with 600 cards to vote on behalf of everyone, when observers protested, IEC officials forcefully evacuated all observers and allowed the person to vote on behalf of 600 persons, once his voting was done, observers were allowed to re-enter the places.

- 81 - Instances of men voting on behalf of women were observed in polling center 05052, 0505 located in Mohammad Agha, polling center 05054, 05055, 05056, 05060 and 05064, 05065 located in Baraki District, and polling center 0501005, 0501008, 0501009, 0501010, 0501016, 0501004 located in Pul e Allam of Logar Province.

State Authorities' Interference

FEFA local observers reported 238 cases of state authorities' interference in the electoral process. Of these 238 cases FEFA fully verified 56 of them that were reported to the ECC. These 56 cases of intimidation include 17 cases of state authorities' interference in the conduct of the election.

For instance, District Governor of Chekansoor District of Nimroz Province was reported to have campaigned and forced voters to vote for Karzai in polling center 2604037.

In another instance in polling center 2603024 of Chhar Burjak District of the same province, armed gunmen of the District Governor forced people to vote for Karzai.

Abdul Basir Salangi Governor of Parwan Province was reported to have forced voters to vote for Karzai in polling center 03004064 of Salang District.

In another instance the Chief of Police of Hirat Province had threatened representatives of presidential candidate Karzai were refused to be given complaint forms by IEC officials on the orders of the Chief of Police.

In polling center 150001 located in Taluqan City of Takhar Province Mullah Noor Mohammad a police officer and brother of Abdul Qahar Hakimi a provincial council candidate collected voter cards and used in favor of his brother.

In polling center 2401002 located in Gowhar Shad Begum School of Hirat City Minister Water and Power Ismayel Khan with his armed men entered the polling center and affected the process.

In polling center Kohi code number 104 located in Qaisar District of Faryab Province Fateh Ullah a current Member of Parliament and a local commander collected people from different villages and brought them to the polling center and encouraged them to vote for Dr. Abdullah and Abdul Baqi a provincial council member. vi. Voter Fraud

The final issue is that of fraud, of which 365 cases were observed with 79 fully verified ones. It is worth mentioning that fraud is different than violations or irregularities in the legal context. This category included ballot stuffing and direct manipulation of ballots and/or ballot boxes by IEC local staff.

Instances were noted such as in Zeken District of Farah Province, where some staffers abused the prevalent illiteracy in Afghanistan and led voters to vote for the IEC staff’s preferred candidates.

Also, in polling centers of 069 and 071 of Almar District of Faryab Province IEC officials fraudulently showed that tabulations forms are lost and intentionally destroyed ballot papers that showed votes for other candidates in favor of Dr. Abullah.

In one instance, in Said Karam District of Paktia Province IEC officials were observed to have carried out massive voter fraud by filling in ballot papers and putting them into the ballot boxes. This polling

- 82 - center was open till 5.15 pm and while there was no single voter, IEC officials were voting themselves. The IEC officials paid no heed to the objections of observers.

In another instance in the Ahmad Abad District of the same province, due to low numbers of voters, the elders of the area in consensus with the IEC officials voted many times for their candidate of choice.

Another case was that ballot stuffing Wama District of Nuristan Province where two provincial council candidates Qari Qyum and Abdul Latif used numerous cards in their own favor. The count of the ballots also took place in a secret place and the ballot boxes were brought to the center of the province after a gap of two days.

Other instances of voter fraud were noticed in Baghlan Province. In polling center 1601014 located in Qala e Khwaja Dand Ghori of Pul e Khumri District ballot boxes were taken to the residential home of Senator Nazar Mohammad apparently due to lack of security in the polling center and ballot papers were marked and dropped in the box while no woman voter had come to the center. Also, in female polling station 03 located in polling center 1609167 of Tala Barfak IEC officials forcefully evicted all observers and filled ballot boxes with ballots themselves. And in polling station 01 of polling center 1604097 of Chehl Kaba Doshi at 05:10 PM, candidate agents of provincial council candidates Dad Mohammad and Feroz U Din added ballots in the ballot boxes themselves. vii. Media monitoring

Considering the security threats and the possibility of attacks on the Election Day, a day before the election on August 19, the Afghan National Security Council, on behalf of the government, requested all domestic and international media to refrain from reporting on violent incidents from 6am to 8pm on Election Day.

Local media complied with this request, whereas international media reported on security incidents throughout the day. Though FEFA sympathizes with the government’s argument that reports of security incidents might have discouraged people to vote, it notes that this limitation of media freedom is a violation of democratic principles, as well as the due and constitutionally protected right of the Afghan citizens, the right to have access to information.

FEFA had assigned a particular team to monitor local, national and international media. Media reports were helpful for FEFA in a number of ways. To begin with, media reports helped us double check our observation reports. Secondly, we cross checked our report with the media report and confirmed their validity further. These reports also helped in relocation of our observers in case they were not in the polling center or polling station where a violation or irregularity was to be observed and reported on. As a result, through monitoring media, we not only received information but also confirmed the information that was being received through our local observers. This mechanism helped us strengthen our observation, its findings and results. viii. The security environment

The security situation was one of the major factors affecting the participation of people in the election and the election administration. Grenade and rocket attacks directed at polling and city centers emerged as a major form of disruption in many parts of the country.

These attacks that continued throughout the day, affected the participation of voters, in particular female voters. Instances of such attacks include attack on the center of Kunduz Province, central Baghlan, Narang District of Kunar Province, Charkh District of Logar Province, Pacheragam District of Nangarhar Province, burning of ballot boxes in Wama District of Nuristan, and bomb attacks on the cities of Kandahar, Kabul and Nangarhar.

- 83 -

FEFA also received isolated reports of suicide bombings and gunfire in the vicinity of polling stations as well as reports of the manifestation of violent threats directed at the voters by the Taliban in several parts of the country such as cutting of fingers of two voters in Kandahar province noted by FEFA observer.

A series of rocket attacks that started at 06:30 am and lasted until 09:00am in an orchestrated fashion caused a major disruption in early turnout of votes throughout the country.

Morning rockets and other types of fighting prevented women voters from reaching the polling stations despite their enthusiasm to do so. This situation seriously affected the female voter turnout. This could be gauged from the relatively higher women turnout during the afternoon when the situation became better in terms of security. Increased women voter turnout was noted in Faryab Province as one instance.

More detailed description of security environment and how it affected the process is given in the table below:

No Location Time Nature Impact Province District Deh Mardan 1 Faryab Village, Gardewan 01:30PM Mine Explosion No Casualties. District

2 bomb Female IEC officials left 2 Kunduz City 8am explosion 10 polling centers.

Head of polling station, 3 Imam Saheb City 10:50 5 rocket fired controller and another officer left the center.

Kunduz FEFA observers left the 4 Ali Abad City Armed Clashes venue and could not continue their work. Sarak e Qahwa 5 3:30 Rocket fired No casualties. Khana Taliban FEFA observers were 6 Khan Abad 3:45 attacked stuck 7 Farkhar 06:55AM Suicide attempt They were arrested. 8 Hundu Village 06:58Am Bomb attack No casualties Takhar Bomb No causalities, but voting 9 Taluqan 08:15am explosion process was hampered. Ballot boxes Hamshuz Village, 10 were burnt by Two persons injured. Waigal Taliban Nuristan Attacks on 11 Kamdesh polling center, Voters' presence reduced ballot boxes

- 84 - burned

Voters dispersed, police was killed, polling centers 12 Surubi Taliban Attack closed temporarily, voters' numbers decreased.

Voters dispersed, Armed gunmen 13 10 Nahia temporarily closure of Kabul attacked center. Voters dispersed and 14 5 Nahia 09:00am Suicide attack presence reduced. Center closed for 90 15 Charasiab Taliban attack minutes. 16 Musavi Taliban attack Voters left the center. Taliban Numbers of voters threatening reduced, or if they showed 17 Parwan Shinwari voters to cutting up, were not ready to their fingers. color their fingers.

3 IEC officials and 4 others injured, center 18 Alisheng 09:00am Rockets fired closed for one hour, voters' presence reduced. Laghman 13 polling 19 Laghman No impact center attacked 20 14 Nahia 10am 3 rockets fired No one came to vote.

21 Surkhabad 09am Rockets fired Voters presence reduced

22 Qala e Zarghun 09-Oct Rockets fired Voters presence reduced

Polling center closed. Voting started from 1pm, 23 Charkh 07-Dec Armed clashes but voters were not coming to vote Logar Police opened ballot boxes, they were IEC officials left the 24 Bazkhabshana 7am already full of center, also the center was ballot papers, attacked. center was attacked also. IEC officials did not 25 Qalae Shahi 7am Taliban attack show, voting hampered.

- 85 - 26 Samganay 2 rockets fired One person injured. 3 gun shots 27 Mandial fired on IEC Voters' presence reduced office 7 killed, including 1 28 Hisarak Rocket fired police 29 Paktia Gardez Suicide attack Abdullah agent killed Armed clashes 2 insurgents killed, the 30 Wuch Ghar b/w government rest escaped and insurgents Armed clashes 31 Gulalbo 2pm b/w government Voters' presence reduced and insurgents Attack and 2 rockets fired on 32 Khwaja Hunari Voters' presence reduced the polling center Ghazni Clashes, 2 33 Qala e Aahangaran 02:30PM Voters' presence reduced rockets fired No casualties, one shop 34 Shamad, Bazar 3 rocket fired destroyed 35 Urgun Rocket attack Voters' presence reduced

Paktika Attack on election Late opening of polling 36 Paktika 7:30 material centers caravan Voters prevented from 37 Nadirshah Kot Rocket fired coming to the center Khost 15 Rockets Voters stopped from 38 Sabri fired voting Hand bomb Voters' participation 39 Chel Metra explosion affected Khoghiani and 40 Rocket Attacks Voters' presence reduced Nangarhar Chabarhar Voters' participation Manuki Sarkanay, Continued 41 reduced, one person Sawkay, Barkunar Rocket attacks killed. Rocket fired, threatening 42 Tagab and Alasai Voters' presence reduced leaflets were Kapisa issued last night 43 Mahmood Raqi Rocket attack No impact

44 Kohstan 2 rocket attack No impact

- 86 - Rocket attacks Maidan Say Abad, Maidan and nigh 45 Voters' presence reduced Wardak Shahr, Dai Mardad leaflets distributed Voters' presence reduced 46 Bamyan Shibar 2 rockets fired for two hours Muqur and 47 Badghis Rocket attacks Voters' presence reduced Ghormach 48 Uruzgan Uruzgan 20 rocket fired No impact Rocket attacks Shah wali Kot and 49 Kandahar on election Voters' presence reduced Maiwand office

50 Zabul Qalat, Shahjoi Rocket attacks 2 people injured in Qalat

Mosa Qala and 51 Helmand Rocket Attacks Voters' presence reduced Sangeen Maad Ali 52 Charburjak Rocket attack No casualties Rocket attack Nimroz on vehicle 53 Chakhansor No impact carrying ballot boxes IEC officials escaped the 54 Baghlan Rocket fired center 55 Dahane Ghori Armed clashes Center closed Material burnt, center 56 Dand Ghori Armed clashes Baghlan closed 57 Pul e Khumri 1.22 Gun fire Center was closed Wazir Abad, Dane Center closed, opened 58 11am Armed clashes Ghori after 3 hours 59 Daikundi Daikundi 3 rockets fired No impact

Violent threats through leaflets thrown at peoples' houses, continued throughout the campaign period, increased as the Election Day came closer, and prevented women from voting. This issue reinforced the commonly held idea of it being unsafe for women to go out of the house during times of insecurity. These violent threats were higher in Taliban strongholds, especially in the southern provinces and Northern provinces like Kunduz or areas in Badghis. In these areas, the reported women voter turnout at women polling centers at 13:30 pm was 5%.

In places where the threats and menaces where higher, the women who participated in the electoral process and cast their ballots were those who actually were already involved in campaign activities of various provincial councils or presidential candidates.

- 87 - e. Tabulation Process

According to the regulation on counting, the count was to be carried out at the polling station level in the polling center as determined by the IEC. The regulation further states that the count should be done by the polling station staff supervised by the chair and observed by accredited observers, media personnel, and candidate representatives.

In accordance with the regulation on counting, the IEC decided to carry out the counting at polling stations versus the previous regional and provincial centralized count. The counting process was not carried out satisfactorily and there was serious lack of impartiality on the part of a significant number of IEC officials who claimed to have followed their set procedures. FEFA observed that electoral violations occurred during the vote count was in no way less than the polling day or periods before the polling day.

As per the counting procedures there were five copies of tabulation forms, of which one was meant to be given to a candidate agent, one was placed in the center, one was put in the ballot box, one was sent to the provincial center and one was sent to Kabul. In such situation it was very difficult for all observers including FEFA to obtain a copy of all tabulation forms and be in a position to compare them with announced results.

Despite these problems, FEFA managed to obtain some copies of the tabulation forms or took pictures of the forms put in the center with a digital camera. This helped us be in a position to compare those forms with the results announced. In total there were 607 tabulation forms of which 191 belonged to presidential election and 416 to provincial council election. From these forms, there were 216 forms which had difference with the final results announced by the IEC. FEFA submitted the information regarding these forms and the difference to the IEC and the ECC at the very time. The images below are samples of forms with differences with the results announced by the IEC central office in Kabul.

FEFA observe the tabulation process in 31 provinces. As a result of this observation, FEFA found out that the tabulation process had proceeded without any irregularity in 9 provinces including Uruzgan, Balkh, Samangan, Parwan, Kapisa, Daikundi, Badghis, Panjsher and Maidan Wardak.

FEFA observers noted a total of 139 cases of irregularity in remaining 22 provinces including Kabul. The observed cases of irregularity during the tabulation process were highest in the provinces of Farah, Faryab, Baghlan and Kunduz with 36, 19, 18 and 10 cases respectively. Further statistical details of these irregularities are given in the chart below:

- 88 - Tabulation Observed Irregularities Farah Faryab 40 Baghlan 36 Ghazni 35 Kunduz Ghor 30 Nuristan Nimroz Kandahar 25 Hirat Badakhshan 20 19 18 Zabul 16 Sari Pul 15 Kabul 10 Paktia 10 Bamyan 6 Kunar 5 444 5 33 Jawzjan 2 111111111 Takhar Khost 0 Laghman Frequency Nangarhar

These irregularities ranged from absence of observers from the scene such as in the case of Nangarhar where observers were not allowed to observe the process, to counting ballot boxes despite ballot stuffing, using blank white papers instead of ballot papers, self marking of blank ballot papers in favor of a particular candidate, carrying out secret vote count or carrying the ballot boxes to a location other than the designated polling station for counting, early delayed start of the counting process, physical tempering with materials such as ballot stuffing, unauthorized polling, changing result data or deliberately invalidating ballots, counting without recording the seal number such as in Ghor Province, to participation in the counting process by family members of IEC officials who had come to pick their member of family from the IEC office, as in the case of polling center 001 located in Maimana City of Faryab Province. IEC officials, candidate agents, candidate supporters, local commanders, state officials and provincial council candidates were involved in these irregularities.

FEFA observers noted several instances of irregularities during the tabulation process at the district and provincial level.

For instance, in Wama District of Nuristan Province polling center 1305041 was closed due to security issues and therefore no voting took place there. However, with the help of the IEC officials Karzari representative Qari Qayum filled the ballot boxes. These ballot stuffed ballot boxes were counted and were included in the results despite ballot stuffing that had taken place earlier.

In another instance in the same province in polling center 1305045 blank white papers were used instead of ballot papers for filling the ballot boxes, which were also counted and included in the results. This was carried out while the IEC regulation on counting calls for the ballot papers to be opened in

- 89 - front of the observers and the numbers on the ballot papers must be reconciled on the polling station official reconciliation form.

While the regulation on counting calls for the process to be carried out in the presence of observers, in polling center 3106131, 3106134, 3101632 and 3106133 in Ghor Province, 1303042 and 1303023 in Nuristan Province, and 1609167 in Baghlan Province the count was carried out secretly and observers were not allowed to observe the process by a provincial council candidate Mawlawi Abdul Razaq.

In polling center 1401011 of Faiz Abad city of Badakhshan Province IEC officials marked blank ballot papers in favor of Hamid Karzai, while in Geena Kan polling center (023) of Farah Province counting had started prior to the official time of the start of the counting process.

Ghazni had a distinct case where except for the districts of Qarabagh, Malistan and Jaghori, the tabulation did not take place in the polling center. According to our observers, the ballot boxes were taken to a place called "the warehouse". Ballot boxes from other insecure areas were also brought to this place and counted together. This process, as was carried out in a secretive way, indicated towards fraud in the tabulation process.

In polling station 0111496 of 7th Nahia of Kabul Province IEC officials and Chair of the polling station were using a marker pen to invalidate ballot papers. This process was stopped when FEFA observers entered the scene; IEC officials refused to answer to the FEFA observer's questions.

While the election process and every phase of it has to be free of any form of intimidation, armed local commanders and state authorities both took advantage of their power and committed electoral violations. One major such instance, which was also widely noticed and reported by other observers and IEC central office was brought in the picture there and then was the case of Head of Police in Kohistan District of Faryab Province, who collected ballot papers from three polling centers (117, 118 and 120) and carried them all to the polling center of Bam e Surkh. As this act in itself was against the law and it could not be ascertained whether any ballot stuffing had taken place or not, this point was noted on the tabulation form sent to Kabul.

Ballot stuffing was a common case throughout the country. Instances of ballot stuffing was observed in polling center 3105104 in Doleena District and 3102054 in Dawlatyar District of Ghor Province in favor of Dr. Abdullah and Karzai as well as provincial candidate Muwaen Ahmad Khan respectively. Other instances of ballot stuffing took place in polling center 1204086 located in Alisheng of Laghman province by IEC officials, 0909079 located in Mandozai of Khost Province by IEC officials in return for money, 02909034 located in Atghar District of Zabul Province, and 1609167 of Tala Barfak District of Baghlan Province.

While widespread cases of irregularity cast enough shadow on the result of the election and transparency of the process, the fate of the vote cast in favor of candidates who withdrew their candidacy before the Election Day was another source of confusion. The IEC press release of September 2, 2009 states this number to be 62,494. This number goes to 81,190 on September 5, but decreases back to 70,359 votes on September 6, 2009, and increasing to 83579 on September 12, 2009 again. The final figure given in the IEC press release on preliminary results issued on September 16, 2009 was 82783 votes. f. Complaints and appeals

The process of complaint addressing, unlike the challenge period, was not a limited one. It started with the establishment of ECC and continued till the final election results were declared. FEFA, as its role suggested regularly provided ECC with updated verified reports of its observation at different levels. These included 4 reports of the Election Day observations, 3 reports of the campaign process, and one

- 90 - report of the candidate nomination process. On the basis of these reports ECC could take initiative proactively for further investigation. This practice unfortunately did not happen much.

The adjudication of electoral complaints process was an important and effective step for building public trust in the elections process in Afghanistan. This process which aimed at arriving at a more reasonable understanding of the election results and therefore providing a more solid foundation for restoring credibility to the elections was completed by Electoral Complaints Commission (ECC) in compliance with the Electoral Laws of Afghanistan, under close observation of many observer groups as well as candidate agents.

FEFA observed the process to be transparent and expected it to lead to the identification of electoral administrative irregularities so that the citizen of the country could once again have confidence in their votes' power and their contribution to democratic institutions and good governance.

However ECC relied only on officially registered complaints and contrary to what it was expected of it, rarely using its power of taking initiative on numerous cases of irregularity that FEFA had sent to it. FEFA sent a total of 8 reports identifying hundreds of cases of irregularity, on which ECC did not take any action proactively on those reports, and used them only as means of supporting documents for officially registered complaints. i. ECC’s decisions

There are two investigative principles that should be emphasized and kept in mind while evaluating ECC's performance. One is that the burden of proving an allegation of irregularity is on the complainant. The Commission requires clear and convincing evidence of an electoral offence or other violation before it can impose sanctions or take other measures. The second principle is that the ECC must always follow due process and give persons who have been accused of committing an offence an opportunity to respond to the allegation.

While ECC faced numerous problems, it did significantly well in adjudicating complaints as compared to the previous elections. The September 8, 2009 Audit Order was one significant decision made by ECC. The ECC also provided positive response to a number of our reports such as in Nangarhar detailed report of which is given in the section on ECC Audit Order.

ECC played its most significant role in handling the election disputes. While the widespread fraud, irregularities and electoral violations during all phases of the election process had led to loss of public confidence in the electoral process and the election administering entities, ECC's final decision with regards to election disputes rendering almost 1.3 million votes invalid helped build people's confidence in a democratic process. As per ECC figures, the entity received 302 challenges to candidate nomination from 16 to 21 May as per the Electoral Calendar, of which 50 were regarding the presidential and vice-presidential candidates and 252 regarding the provincial council candidates. As a result of the ECC deliberations, 57 candidates included 3 presidential, one vice presidential and 54 provincial council nominations were disqualified to run for office. Of these 1 was for dual citizenship and 56 for linkages to illegally armed groups.

During the challenge period, ECC processed and decided on 93 cases of exclusion. As a principle, complaints required detailed personal statements and evidence which were not always provided due to lack of legal knowledge on the part of the candidates. ECC dismissed 108 challenges because of lack of legal grounds or failure to satisfy evidential requirements, and issued fine in four cases.

During the campaign period ECC issued sanction in 28 cases while there were 165 cases of dismissal. These complaints were mainly about abuse of state assets, official interference in the electoral affairs

- 91 - and campaign materials. Other ECC decisions included sanctioning campaign-related offenses such as attacks against the dignity of one female presidential candidate, nonconformity to the rule of disclosing assets, and campaigning engagements of government officials in support of the incumbent President. Significant most decisions were made against Dr Abdullah and vice presidential candidate Mr. Khalili's campaign teams, where the later was sanctioned to a fine of Afs. 5000 because his election campaign poster was placed on a poster of Ministry of Health, while vice presidential candidate Khalili was sanctioned to a fine of Afs 75000 for misuse of government helicopters while campaigning for Hamid Karzai. Mohammad Mohaqeq and General Dostum were also sanctioned to a fine the amount of which is not known as ECC stated.

ECC received 2584 complaints during the polling and counting period of which data was entered in 2561 cases. This figure included 893 cases in priority A, 785 cases in priority B and 883 cases in priority C. A summary assessment of complaints received and processed from August 23 to September 30 is given in the table below:

SUMMARY ASSESSMENT (From August 23 to September 30)

CASES CASES DATA ENTERED PROVINCE INTAKEN Priority A Priority B Priority C None Total BADAKHSHAN 6 28 11 0 45 BADGHIS 38 19 13 0 70 BAGHLAN 76 65 87 0 228 BALKH 9 21 16 0 46 BAMYAN 5 15 12 0 32 DAIKUNDI 15 9 3 0 27 FARAH 39 16 15 0 70 FARYAB 64 39 41 0 144 GHAZNI 40 44 32 0 116 GHOR 17 19 17 0 53 HELMAND 37 22 26 0 85 HERAT 48 46 94 0 188 JOWZJAN 2 7 2 0 11 KABUL 83 77 100 0 260 KANDAHAR 45 33 62 0 140 2,584

KAPISA 14 15 21 0 50 KHOST 18 14 18 0 50 KUNAR 39 14 23 0 76 KUNDUZ 31 45 41 0 117 LAGHMAN 17 12 11 0 40 LOGAR 22 16 25 0 63 NANGARHAR 37 32 19 0 88 NIMROZ 16 8 6 0 30 NURISTAN 13 12 8 0 33 PAKTIA 25 17 16 0 58 PAKTIKA 22 12 27 0 61 PANJSHER 15 13 10 0 38 PARWAN 10 20 8 0 38 SAMANGAN 5 5 3 0 13

- 92 - SAR-I-PUL 5 15 14 0 34 TAKHAR 20 45 23 0 88 URUZGAN 15 9 7 0 31 WARDAK 23 6 8 0 37 ZABUL 21 11 15 0 47 GENERAL / NA 1 4 49 0 54 Total 2584 893 785 883 0 2561 % 35% 31% 34% 0%

ECC's Order of September 8, 2009

After serious national and international pressures and a series of complaints and allegations of fraud by observer entities ECC took the historical decision of holding a recount and conducting an audit of the votes. As per the September 8, 2009 Audit Order issued by the ECC, the entity launched a joint audit of a sample of the ballot boxes that met the criteria in September-October 2009. The audit teams had three members each, two from IEC one of whom to lead the team plus one member from the UN Development Program's ELECT project. In total there were six audit teams carrying out the entire activity. A team of UNDP ELECT staff, ECC and IEC supervised the audit process while representatives of the candidates and observers were not given access to the audit center allocated in Kabul. This limitation added to the rule of not releasing the results of the individual audits during the investigation process.

Keeping in view the time that examining large numbers of ballot boxes across the country individually, the ECC agreed with the IEC that a sample could be taken to obtain data that could reliably represent the existence of polling irregularities in polling stations with equivalent results.

The objective of the process was to allow the ECC to make informed decisions about the frequency of fraud in the polling stations affected by the ECC’s order and to determine the impact on the results of the presidential election.

A total of 3377 polling stations were covered by the ECC’s order. To create a statistically sound sample, the IEC and the ECC agreed to divide the affected stations into six categories and to treat each category of polling stations separately. A random sample of polling stations was selected for each category, which enabled conclusions to be reached with a very low statistical margin of error. Each sample size was approximately 10 percent of estimated total ballots in the respective category.

Category Definition Total Stations in Stations Sample A1 Polling stations in which 600 or more valid votes were cast 545 55 B1 Polling stations with more than 100 votes in which one 1391 137 candidate received 95 percent or more of the total votes cast C1 Polling stations in which 600 or more valid votes were cast 741 82 AND in which one candidate received 95% or more of the total votes cast A2 Polling stations in which 600 or more total votes were cast, 299 30 except those already covered in A1

B2 Polling stations in which one candidate received 95 percent or 401 40 more of the total valid votes cast, except those already covered in B1 C2 Polling stations in which 600 or more total votes were cast 121 14

- 93 - AND in which one candidate received 95% or more of the valid votes

The Audit Methodology

For each ballot box within a sample, the IEC recorded data related to physical indicators of fraud. The ECC used this data to assist in its determination of whether or not the ballot boxes were considered fraudulent. This determination was based on indicators that included:

• A visual inspection of the ballot box for signs of tampering; • A check of the contents of the ballot box to determine whether required materials are present and whether the contents indicate signs of irregularities; • An inspection of the ballots to see whether they show clear signs of fraud; and, • A review of the result and reconciliation forms to determine whether votes were recorded correctly.

In accordance with ECC’s Rules of Procedure, the ECC determined whether one indicator or several indicators together provided clear and convincing evidence of fraud at that particular polling station, depending on the totality of the information available relevant to that polling station.

Had the ECC found clear and convincing evidence of fraud in a ballot box, it would have invalidated the results of the polling station and would have notified the IEC accordingly. A finding that a ballot box was fraudulent meant that the integrity of the voting process for that box had been compromised, and that all the votes contained in the box were fraudulent, in accordance with accepted electoral practice.

The presence of clear and convincing evidence of fraud in the sampled polling stations enabled the ECC to determine the incidence of fraud in non-sampled polling stations from the same category. If a percentage of the votes in a sample were found to be fraudulent, the ECC would have found this to be clear and convincing evidence to conclude that the same incidence of fraud applies to the votes cast at all polling stations in the corresponding category.

After determining the incidence of fraud in specific stations in the samples where it is warranted by the evidence, the ECC determined the extent to which its findings about the samples affect the overall results of the presidential election, which was done by determining what percentage of the valid votes in the sample were fraudulent, and this percentage was multiplied by the vote total for each candidate in the corresponding category. This calculation determined how many of each candidate’s votes were considered fraudulent and therefore removed from the count.

For example, if a candidate had won a total of 300,000 votes in all polling stations of a category, and if 50% of the votes in sampled boxes were found to be fraudulent, the ECC would have concluded that 150,000 votes for the candidate would have been affected by its findings of fraud. This calculation was performed for each of the candidates in each of the six categories of polling stations. The ECC then aggregated these calculations for each candidate and notified the IEC of its findings and decisions, which were made public.

The audit was conducted as per a checklist covering four phases of visual inspection of the ballot box, opening of the ballot box to discover if tampering had occurred, checking whether the ballot box contains the necessary materials and whether or not the actual contents display signs of fraud. The audit teams had already decided on the indicators of fraud being unfolded ballots, identical markings or significant patterns of markings, or discrepancies between the total ballots bundled and the total votes recorded on the results form. - 94 -

IEC's Performance with regards to the September 8 Audit Order

ECC made a historical and rightly placed decision and together with IEC launched an audit of the election results. However facts show that IEC did not implement ECC's decision of audit and recount as was planned.

An official letter (ECC-09-037) was sent from Grant Kippen Chairman of the ECC to Dr. Aziz Ludin, Chairperson of the IEC on November 4, 2009. This letter among other issues identified and questioned IEC with regards to the total percentage of the final vote that presidential candidate Hamid Karzai had received. As per IEC figures this percentage was 49.67 while other observer organizations and ECC's calculation gave a percentage of 48.3. What ECC suspected was a miscalculation by the IEC as per the September 8 Order.

In addition, ECC noted that in the published table of "Presidential Candidate Votes" on the IEC website, the number of "votes from stations not covered by complaints/ audit" matches closely the IEC's previously published preliminary results and the ECC's invalidation decisions. However, after applying the coefficients mandated by the ECC's order to those totals, the resulting "votes from stations in the universe" is more than 200,000 votes higher than the result would be if the ECC's coefficients were applied. Therefore, the ECC noted that most of the difference (154,000 votes) is accounted for by an unexplained increased number of votes counted for candidate Karzai.

In this letter, the ECC further discussed the lack of clarity on how the number of votes added from the quarantine to the final count was calculated, as any station entering the final count from the quarantine or from any other station not included in the final preliminary result should be first subject to the ECC's Order of 8 September 2009 and the relevant coefficients must be applied.

FEFA Observation of the Process

Votes for the Presidential Candidates

FEFA with the help of its provincial coordinators, district coordinators and observers managed to observe the process of transferring ballot boxes in 19 provinces of the country. Also, on October 5, 2009, FEFA through its 10 observes monitored the process of recount directly. Our observation of this process was focused on three areas of making technical preparations, transfer of to-be-audited ballot boxes from the provinces to the center and practical process of recount in the center.

The method adopted by IEC, while helped conduct a quick audit, had a number of problems. We felt that there was lack of sufficient attention to the method itself, which was why it led to two sets of methodologies dividing the ballot boxes primarily into three and later into six categories. This is of critical importance mainly because it affects the credibility of the results and the transparency of the recount process.

Our experience of observing this process shows that a major technical issue to be kept in mind is developing regulations and rules of procedures that are clear and provide vivid answer to the predicted electoral problems and ambiguous situations. This was why all observer organizations including FEFA were looking forward to receiving the regulation on audit and recount soon after the ECC gave out its 8 September 2009 Audit Order. However, due to lack of coordination between the two entities of IEC and ECC, this document, which could have been very helpful to observers in developing their observation plan, under the name of Commission Policy Document, was provided to observer organizations after many weeks, in fact one day before the practical conduct of audit and recount.

- 95 - FEFA observation of the process of transferring selected ballot boxes from the provinces to the center shows that despite having an already developed plan, due to lack of coordination between the IEC and the ECC, the process of identifying the selected ballot boxes and taking them out of safe warehouses had started in the absence of observers and candidate agents.

Also, observers were given insufficient information regarding the lists of the selected ballot boxes. This situation made it impossible for observers to be sure about whether the right ballot boxes were transferred to the center or not. One such example was the case of Nangarhar province where one of the identified ballot boxes as per the list was lost, in place of which, the IEC officials in Nangarhar decided to send other ballot boxes from the same district. This is in line with the IEC/ECC regulations, but opens up the possibility of IEC officials to hide or dispose of fraudulent boxes and instead provide “clean” boxes. This regulation should be reviewed and revised to discourage this type of possible fraud.

Also, in Nimrooz province, some of the candidate representatives believed that the identified ballot boxes did not meet the criteria, and instead, the IEC should have identified another set of ballot boxes which met the audit criteria.

In Kandahar, FEFA observers were not allowed to monitor the process by the IEC officials and therefore they could not obtain information about the serial numbers of the ballot boxes that were going to be sent for audit to the center.

While on the first day of the recount process observers were given greater opportunity to observe the process and develop and a better picture of the process and the recount procedure, this relative transparency changed on the second, third and fourth days, due to unknown reasons. On these days observers were not allowed to monitor the process from a close distance, thus making it difficult for them to understand whether the performance of the recount teams were satisfactory or not. Also, while observing the opened ballot boxes, observers were not allowed to gather information regarding the nature of the violation, number of problematic votes, and name of the candidate in whose favor the violation had occurred. Furthermore, observers' questions were ignored and most of their questions remained unanswered.

Votes for the Provincial Council Candidates: The Case of Nangarhar Provincial Council

After continual objections raised by some candidates for the Nangarhar Provincial Council regarding suspected defrauding of the poll results, the IEC decided to recount the votes of Nangarhar Province for the seats of the Provincial Council. The recount process commenced in the presence of candidates' agents, ECC representatives and FEFA observers at the Nangarhar Provincial Electoral Office on November 5, 2009 and ended on November 14, 2009. FEFA having three of its observers on the ground, observed the entire process.

Our observation shows that since the IEC had not provided any written or specific procedure in relation to the recount process, thus candidates' agents and observer organizations had no information on the manner the recount was going to take place. The IEC officials merely gathered the observers and candidates' agents on the onset of beginning of the recount activity on the venue and explained verbally the recount procedure as:

"In the first phase, each of the ballot boxes in the 9 previously assigned locations will be opened. Then all the bundles inside the box will be evaluated and the bundles wrapping the most votes will be picked out from the boxes. Consequently, as a sample, three votes from each bundle (one from each side of the bundle and one from the middle) will be picked and will be evaluated and if it is found that a vote is cancelled, the ballot paper is blank or has any other problem, the sample bundles will be recounted one by one."

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At the end of this verbal explanation of the recount process, most of the candidates' agents objected to the procedure. Finally after five hours of discussion, they agreed to the procedure only on the condition that if any of the bundles sounded suspicious to them, they can and will demand the whole bundle to be recounted.

It was observed that while some boxes had no result forms, in some other boxes votes of one candidate was counted for another candidate; in some cases, the code belonged to one district while the votes came from another; some boxes lacked side seals. Once these issues were observed, the candidates' agents objected to the procedure even more and as a result the process was stopped, which again took hours before it could begin.

During this process 145 boxes were inspected and recounted, of which 115 had no result forms. New result forms were made for these ballot boxes a copy of which if given to the candidate agents could have helped them prevent future cases of fraud, was not given to candidates' agents by the IEC officials despite continuous demands by the former.

We also observed that 4 ballot boxes were missing which included 2 from Bati Kot District, 1 from Kama District and 1 from Dara e Noor Distric. The fate of these ballot boxes was unclear and IEC had no clear policy in this regard.

We further observed that the side seals of 18 ballot boxes were missing thus making it easy for the boxes to be tampered with. Also, one of the ballot boxes was sent to Kabul without its votes being recounted. And 75 invalid votes were registered in the result sheet of the 2 ballot boxes from Khogiani District.

Our observation further showed that there was explicit difference in the votes for some of the candidates in 6 boxes from Dor Baba, Achin, Khogiani, Rodat, Dara e Noor and Kama Districts. For example, Amir Mohammad, a provincial council candidate had received 26 votes in one of the boxes in Dara e Noor District but there were only 8 votes mentioned for him in the result form.

There were also 7 boxes from Khogiani, Kot, Mohmandara and Hesarak Districts, where the votes of some of the candidates were mentioned more on the result form than they really existed in the ballot box. For example, in one of the boxes in Khogiani District, Ibrar Ahmad a provincial council candidate had 1 vote in the box but it was registered as 107 votes in his favor on the result sheet. It was also observed that in one box 20 votes of one of the provincial council candidates (Najibullah Mahboob) were counted in favor of another candidate (Haji Hassan).

It was also observed that the code number of two of the boxes did not match the actual codes for this province. For example, one of the boxes with code number 10055031 belonging to Rodat District didn’t match code numbers for the very district. Another ballot box with code number 1070012 did not match code number for any district within the Nangarhar Province.

Lessons Learned: Practices that need to be institutionalized

On time preparation of regulations and rules of procedure for any process is of great significance. What is more important is for that regulation and rule of procedure to be clear and provide answers to predicted questions that could rise during the process of implementing it. This is possible only if prior to developing the document, a practical understanding of the situation is developing and a multi- faceted contextual analysis is carried out.

One of the tools of fraud prevention is presence of observers through all the election processes and phases. What should be kept in mind is that presence of observers will not only prevent fraud for the

- 97 - purpose of internal strengthening of a process, but also build public trust and confidence in the exercise, thus giving it the backing of a nation.

Another area that requires due attention is provision of sufficient and timely information not just to general public but particularly to the observer groups, candidate agents and media, whose presence, as discussed, is a guarantee of transparency of the process and fraud prevention.

We also believe that besides paying attention to the political aspects of a process, sufficient focus should be there on the technical aspects of it as well. It is of significance to the people of a country to know and understand the technical procedures involved in any process, so that they are in a position to not only follow what is going on, but also question when there is a diversion from the track, thus enabling them to develop a more welcoming attitude towards the final results.

And last but not the least, lack of cooperation and coordination between the IEC and the ECC resulted not only in hindrance in flow of timely information to the media, observer groups, candidates agents and people, but also resulted in themselves being ignorant of facts. One such example was lack of knowledge of ECC officials of the transfer of selected ballot boxes from the provinces to the center which had already started on October 1, 2009 in provinces of Nuristan and Samangan, while they thought it was going to start on October 3, 2009. g. Preliminary Results Announcement

As the counting of votes and announcement of preliminary results from Afghanistan’s 2009 Presidential Election proceeded, FEFA called on the Independent Election Commission (IEC) to emphasize that the announced results were preliminary and subject to the adjudication process. There were three reasons for this. First, lack of clarification from the IEC led to some people considering those results as final and celebrating the victory of their candidate of choice. Considering the political uncertainty that existed then, such news could lead to violent reactions and there further increased insecurity.

And secondly, due to the serious lack of election credibility as well as observed and exposed instances of electoral fraud carried out at several phases, the process of adjudication of results was a most important process that needed to follow immediately. And lastly, in accordance to Article 49 of the Electoral Law, final results could be announced only after the ECC had addressed the complaints it had received.

To assist the adjudication process, it was important that the IEC clarified some of the nonexistent details about the August 20th Election Day. For example, the IEC needed to publish the complete list and details of initially planned polling centers that could not be opened on August 20th due to security and/or other concerns. Furthermore, the ECC needed to investigate the reported incidents of violations with due diligence and utmost transparency. i. The Second Round and the Final Results Announcement

Following a series of complaints and allegations of fraud by observer entities, the ECC issued the September 8, 2009 Audit Order. As per this audit order, the entity launched a joint audit of a sample of the ballot boxes that met the criteria in September-October 2009.

There were six audit teams carrying out the entire activity, which was conducted as per a checklist covering four phases of visual inspection of the ballot box, opening of the ballot box to discover if tampering had occurred, checking whether the ballot box contains the necessary materials and whether or not the actual contents display signs of fraud. The indicators of fraud were unfolded ballots, identical

- 98 - markings or significant patterns of markings, or discrepancies between the total ballots bundled and the total votes recorded on the results form.

Based on the findings of the findings of the audit process, on October 19, 2009, the ECC declared its findings of the audit on the basis of the Audit Order of September 8, 2009. The ECC invalidated 210 polling stations covering almost 1.3 million votes, where they had found clear and convincing evidence of fraud. The result of this decision left no candidate with more than 50% votes, thus taking the election to the second round. The table below gives details of how the audit findings and ECC decision affected the fate of the election results.

Candidate Valid Vote in Preliminary Uncertified Result Invalidated Vote Audit from ECC Findings Priority A Invalidated Vote Valid Vote After ECC Published Decisions Final Post-Audit and Post-Complaint Percent based on Published Decisions Hamid Karzai 3,093,256 954,526 41,276 2,097,454 48.29% Dr. Abdullah Abdullah 1,571,581 191,554 10,098 1,369,929 31.54% Others 997,921 115,322 6,540 876,059 20.17% Total 5,662,758 1,261,403 57,914 4,343,441 100.00%

The decision was welcomed nonetheless by all sides, and the election administration as well as national and international observers made preparations for the second round. IEC announced that it is fully prepared for conducting the second round and announced to hold second round of elections on November 7, 2009. FEFA also conducted a series of trainings for its provincial managers and updated its lists of district managers and local observers.

However, on October 31, 2009, 7 days before the Election Day Dr. Abdullah announced his decision not to participate in the second round of elections. His stated reason for not participating was the widespread fraud in the August 20 elections and the rejection of his demands to the Karzai administration which included the replacement of senior IEC officials and Ministers of Interior, Minister of Defense, Minister of Borders and the head of the Independent Directorate for Local Governance (IDLG).

This decision of Dr. Abdullah created a situation of political uncertainty. There was legal ambiguity with regards to decisions of this nature, and the volatility of the situation indicated towards possible reactions of violent nature. Following the example of countries like Zimbabwe, New Guinea and Argentine, IEC was the only entity which had the authority to come to a final interpretation and make a decision in this regard.

Finally, the IEC decided to not hold a second round, since legal provisions provided for the two top most candidates to compete in the second round, of which one had declined from participation, leaving the second round with only one candidate, thus being the winner; IEC declared Karzai the President of Afghanistan for another five years on November 1, 2009.

- 99 - Recommendations

The elections of 2009 were a critical test of democratic development in Afghanistan. We proudly state that despite numerous issues and challenges faced by this process, it was another step towards democratic governance and vivid rejection of armed conflict to gain political power. It showed that Afghans are desperate for justice and fairness, which was why there were a series of debates on how to ensure the credibility of this process.

FEFA, Afghanistan's largest election observation entity observed the presidential and provincial council election of 2009. Not just this, FEFA also has the experience of observing the 2004 and 2005 Presidential and Parliamentary Elections as well as elections in other countries.

The recommendations in this report are based on our observations. These include numerous observed cases of fraud and election violations. They are also based on the perception of the Afghan people indicating towards the Afghan Independent Election Commission's lack of independence and the ever increasing insecurity which led to the coming into existence of ghost voters, multiple and underage registrations and other acts of fraud.

In addition, there existed an uneven playing field between the incumbent and other presidential contenders. The incumbent had and used resources and levers of power at his disposal, while others didn’t. This happened despite Electoral Law specifically prohibiting the government from such activities. Though many of these violations were done by the incumbent and his supporters, other candidates and their supporters were also guilty of using state resources (as noted in the findings of this report).

Most importantly, the people of Afghanistan and their courage deserve to be acknowledged, admired and respected. They courageously stood up in the face of numerous challenges including threats, intimidations, violence and logistical issues and showed up in great numbers at the polling centers. They didn’t lose hope in the election as a legitimate vehicle for peaceful transfer of power in spite of seven years of poor service delivery by an elected government. Their determination brought an end to the violent transfers of power in Afghanistan.

The credibility of every election process is based on four principles. For an election to be credible, it has to be general, direct, secret and free. Our observations depict a picture contrary to what the principles of election demand. This election and its conduct were in violation of all four principles of election.

Our observations indicated that the 2009 Presidential and Provincial Council elections could not be conducted in a way as to include all areas of Afghanistan and provide every single citizen with the opportunity to exercise his political right. A total of 8 districts remained out of government control thus leading to its' residents being deprived of the right to vote and participate in the election process. Therefore this election was not general.

Secondly, this election was not direct. As mentioned in this report, FEFA noted numerous cases of proxy voting. FEFA also noted cases of men obtaining voter registration cards on behalf of women, thus rendering the election not based on second principle of ideal electoral conduct.

Thirdly, the 2009 election was not secret. We have numerous instances of religious and tribal elders, officials of IEC, state authorities or representatives of candidates violating the secrecy of vote and the election conduct. In one such instance the head of the polling station of Maghlan secondary school Mawlawi Qyam U Din Keshaf, who is also an influential religious and political leader, was observed to have forced voters to show their ballot papers to him while he had thick marked Dr. Abdullah's name on the ballot paper.

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And lastly, the 2009 election was not free. FEFA observers reported 200 cases of intimidation, and 238 cases of state authorities' interference only on the polling day. These cases demonstrate that the election was not free and voters were intimidated and threatened at various stages of the electoral process.

Furthermore, considering the experience of two elections, it is well understood now that we need to have a more long term approach when it comes to preparing for this process. This calls for a plan of work stretched over decades and not years only. Such a plan, for instance, will include conducting promotion of democratic values in periods of quite in between elections, developing better outreach to publicize eligibility criteria and wider plans for civic education.

A legal analysis shows that civil and political rights and fundamental freedoms are ensured by the Constitution, which is why the supreme most legal document in Afghanistan is generally in line with the international standards of democratic conduct and ensures Government of Afghanistan's corresponding performance according to the ratified international agreements such as the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) and the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).

The constitution is supported by set of laws and regulations that spread further light on means and ways of implementing these fundamental freedoms. The supporting legislation includes the Law on Assemblies, Strikes, Demonstrations adopted by Presidential Decree on 09 January 2003 and the police law published on September 22 2005, which when combined, make the framework for ensuring the freedom of assembly in line with democratic standards. Therefore, generally speaking, the legal framework is reasonable enough for the democratic conduct of the electoral process to be carried out.

There are a number of legal shortcomings however. When it is to talk of transparency of a democratic process like elections, it comes down to the degree and extent to which people, directly or through their representatives have a say in major decisions.

One of the major issues concerning the transparency of the electoral process dealt with the impartiality of the IEC as the administering entity. This issue could have been avoided had the original draft Law on the Structure, Duties and Authorities of the Independent Election Commission been promulgated, which made the approval of the Wolesi Jirga of the nominations of the Commissioners a requirement. This Law was declared unconstitutional by the Supreme Court.

The IEC came up with a late interpretation of the Article 37 (2) of the Electoral Law which authorized withdrawal of candidates after the established deadline. The decision however did not provide full and timely information for voters and therefore it could not fulfill the international standards in this regard.

Counting polls at the polling stations, while on one had is in line with the international best practices, on the other renders voters and their right to have a secret vote vulnerable, as it is very easy to figure out how many people voted for which candidate in a small place and therefore exposes the voters to the risk of being identified as a particular candidate's supporters. Further study should be done on this issue to determine the most effective way forward.

Absence of an updated census has made reforming the electoral system for sub national councils very difficult. The SNTV election system limits opportunities for the growth of political parties as well as ends up with imbalanced representation from all districts of a province, as the major vote gainers could possibly come from the same district within a province. This situation can lead to a provincial council formed of 50% of members from one district and the rest from other two districts with the rest of the province remaining totally unrepresented.

- 101 - While we acknowledge and appreciate the efforts made by the IEC in developing electoral rules of procedure and regulations, we also note several gaps in them. For instance, the regulation banning use of state resources during the electoral campaign period limits this restriction to the campaign period only, while it should cover the whole electoral period. Legally speaking no government or civil servant can use his authority in a way as to affect the election process in any way, while we observed that many candidates while holding their position participated in aid distribution, inauguration of developmental projects, and signing of agreements.

The regulation on the finances of the candidates calls on candidates to provide IEC with the Assets and Liabilities Registration form prior to the commencement of the electoral campaign period. What this regulation does not call for is publicizing those records of assets and liabilities for the public consumption, as clearly given in the Paragraph 2 of Article 50 of the Constitution. Publicizing candidate assets before the electoral campaigns and publicizing their campaign expenses afterwards would have provided the people with the opportunity to compare figures from the perspective of accountability principles. Determining a ceiling for campaign expenses is not a common practice in developed countries however in developing countries this measure has to be taken to ensure a level playing field. Likewise there should also be a ceiling determined for donor entities and individuals.

Based on its observation activities, FEFA makes the following recommendations which cover mainly three areas of political, legal and administrative. The recommendations are grouped on the basis of the target groups. These include the government of Afghanistan, the legislative organs of the country, the ECC, the IEC, the civil society organizations and the international donor community.

The set of political recommendations for the most part target the government of Afghanistan's executive and judicial organs. The legal set of recommendations target the legislative branch of the government and highlight the legal gaps that create ambiguity in the process. And the administrative recommendations are targeted at the administering body of elections, the Independent Election Commission and the Election Complaints Commission. Since the civil society organizations and the international community are a stakeholder in all areas of this exercise, it is expected of them to pay attention to the recommendations given in all three categories.

I. To the Government of Afghanistan

1. Improving the security conditions for candidates, supporters and voters, in particular women is a critical area to ensure the proper and efficient conduct of the election. More efforts must be undertaken aimed at strengthening Afghan Security Forces.

2. Build the confidence of voters and candidates in the process through showing zero tolerance for fraud and ensuring that strict and immediate action is taken against government and security officials observed to have interfered with the election process. This action could include investigation and legal prosecution of the violators.

3. Ensure the independence of the media outlets in particular the Radio Television Afghanistan RTA as a public media channel.

4. Build public confidence in the election administration entities by conditioning commissioners to be short listed by civil society and a vote of confidence by the Parliament.

5. Review and rebuild the lists of armed illegal groups in order to facilitate the vetting process and bring more fairness into it.

- 102 - 6. Ensure that there is effective and efficient implementation and enforcing mechanism in place to avoid for instance abuse of state resources and authority for campaigning despite the Presidential Decree of May 2009.

7. Ensure that the opposition candidates have access to a minimum level of media, transportation, and funding to allow them to conduct a campaign, through ensuring a level playing field.

8. Deal with the difficult issues of transitional justice and judicial accountability to reduce the chances of criminals entering the electoral race.

9. Consolidate and support elected representative bodies at all levels

10. Women must be strongly supported in their aspirations to participate fully in the political processes of Afghanistan.

11. Para 6 of Article 83 of the Afghan Constitution calls for national census to be carried out, which will support building an accurate voter lists and prevent electoral offences. This is an issue of utmost importance which requires greater attention from the government as well as international stakeholders.

12. For a more successful and effective conduct of the District Council Elections, it is important to treat identification of district boundaries as a priority program of the Government in particular Ministry of Interior.

II. To the Legislative Organs

1. Research and review the electoral system of the country and recommend a system more apt to our circumstances and one that ensures greater participation and true representation of all areas in the country. We recommend replacing the Single Non-Transferable Vote (SNTV) system with a system combining the SNTV and the proportional representation system.

2. Ensure that the laws regulating the conduct of the election and the election administering entities such as the Election Law have provisions in place on the basis of which mechanisms of accountability and transparency could be developed.

3. On the basis of national and international standards, review and ensure that the rules and regulations developed by administering entities do not give rise to legal ambiguities and provide clear guidance on all issues pertaining to the conduct of the elections.

4. Specify the date of establishment of the ECC: ECC must be established early to ensure that the ECC offices are well functional and staffed before the complaints period starts.

5. Develop a special law on the structure, duties and authorities of the ECC in order to enhance further independence of the entity from executive pressures.

6. Consider modifying the electoral law, following at least two or three additional electoral cycles and continued improvement of the electoral processes, to Afghanize the ECC, with the commissioners and staff Afghans and internationals serving as advisors. a. Election Law

1. In accordance with the Article 83 of the Afghan Constitution, special legislative measures should be taken to ensure true, general and fair representation of all the people of Afghanistan.

- 103 - 2. Though the Afghan Constitution provides a reasonable frameork regarding the election system, however, there is still need for a clarification of Constitutional articles through the Election Law, with the aim of ensuring that all electoral rules, regulations and rules of procedure are in accordance with the Constitution as well as standards of free and fair elections. One of the areas of focus should be the electoral calendar. FEFA believes that the electoral calendar in the Election Law should be amended in a way as to allow enough time for preparations for the next election as well as prevent unnecessary waste of resources and people disinterest in the process.

The amended law should have the IEC publish the electoral calendar at least 180 days from the election (instead of the current 120 days). While the Election Law states the duration of the work of the ECC, it does not specify the date of establishment of the entity. We recommend establishing the ECC at least two months before the start of the candidate registration so that it has sufficient time required for establishing the provincial offices, recruitment of staff, and launch and implementation of public awareness programs.

3. As FEFA noted, the timely establishment of the ECC can ensure the transparency of the election process in the country. FEFA recommends that there is need for a special law on the structure, duties and authorities of the ECC in order to enhance public confidence in the process. We further recommend that this law should include provisions that secure the independence of the ECC and block the executive pressures on the Commission.

4. There is need for added articles that support the internationally accepted principles of free and fair election such as those related to the financial affairs of candidates and abuse of state and resources during the election process as means of preparing effective grounds for a sound election process.

5. The National Assembly should consider modifying the electoral law, following at least two or three additional electoral cycles and continued improvement of the electoral processes, to Afghanize the ECC, with the commissioners and staff Afghans and internationals serving as advisors.

III. To the Independent Election Commission

1. Build an effective internal evaluation and monitoring mechanism which not only monitors and evaluates the performance of IEC staff but also renders the commission bound to its implementation thus enforcing effective checks on all phases of the electoral process.

2. While developing electoral rules and regulations, ensure that their coverage is not limited to a particular time period and is clear on this issue, thus not providing the violators the opportunity to manipulate it.

3. Right to information is a fundamental right guaranteed by the Afghan Constitution. Based on this principle, publicize the records of assets and liabilities of candidates as well as details of their campaign expenses, so to provide people and the civil society with the opportunity to compare the amounts and hold candidates accountable.

4. Ensure the neutrality of election administering staff.

5. Considering women in all plans is very important. This includes planning locations of voter registration and polling centers in areas that are accessible to women and increase in number of female staff. To simplify, what is easily accessible for women, is definitely accessible for men, but what is accessible for men is not necessarily easily accessible to women as well.

- 104 - 6. The election administering body needs to act in a transparent way and share information with the civil society organizations and the people at large. For instance it should clarify its use of technology for the prevention of multiple registrations. Also, IEC should use the quiet time between elections in solving the issues with regards to multiple registrations.

7. The capacity of IEC officials should be built further to avoid electoral irregularities such as under age registrations. When giving trainings to the IEC staff, it should be kept in mind that they not only need to learn operational techniques, but also know about democratic principles and values.

8. For rural areas and where institutional reach has been limited, develop an early and closely monitored recruitment plan; hold longer trainings with especially tailored materials and manuals, and involve ECC in the strict monitoring of the whole process (having the ECC monitor the process is outside their remit under the electoral law; therefore the law should be revised to ensure the ECC monitors these processes).

9. Take appropriate legal actions against the offenders and publicise the process and their names.

10. Investigate alternative ways of registering people that reside in relatively unsafe areas.

11. Raise the personnel capacity to process observer registration more smoothly and quickly. FEFA missed to observe part of the election process because of delay in registration process by IEC.

12. Consult the civil society organizations and other entities while making plans and developing procedures. a. A New Law on the Structure and Authorities of the IEC

1. There is need for a special law governing the structure and authorities of the IEC. Such a law should focus on bringing about legal guarantees aimed at ensuring structural and budgetary independence of the IEC, neutral performance during the election process and required administrative capacity. For improved development of this law, it is important to develop the draft of such a law in close consultation with key stakeholders, including civil society, political parties, candidates, voters, and legal experts.

2. Conditions, standards and processes of recruitment as well as duration of employment of IEC senior officials should be developed in such a way as to ensure their independence of action. As observed during the 2009 elections, the current process of recruitment by the President has been one of the main for questions to be raised about the independence and neutrality of the IEC. To address this problem and ensure further effectiveness, we recommend that civil society, as a third neutral party should be given a significant role to play. We suggest a process whereby civil society organizations in consultation with Parliament Committee for civil society should come up with a list of qualified candidates and present it to the President, who should be bound to select from the very list. President's selection should be then presented to the Parliament for vote of confidence. In case the Parliament issues a vote of no confidence, then the President should remain bound to choose from the list given by the civil society organizations. A mechanism would have to be developed for determining which civil society groups are involved in this process.( May those civil society organizations who are involved in electoral processes).

3. This law should oblige the IEC to the provision of timely information to the general public, observer organizations, candidate agents and political party representatives in order to ensure further effectiveness. Such information may cover details, figures and locations of polling centers and polling stations, sensitive material, number of male and female local officials, etc. FEFA believes that provision of timely information to the public can increase their confidence in the process. Therefore it

- 105 - is of significance importance that IEC develops mechanisms aimed at provision of timely information regarding closed polling stations, polling stations facing problems that could affect the smooth running of the process, or regarding the procedure of keeping and transferring of sensitive election material that were not used.

4. FEFA believes that there is need for more focused attention to the legal capacity of the IEC, which if strengthened, could help strengthen other regulations and rules of procedures, not only rendering them more effective, but also prevent the possible instances of contradiction between election rules, basic principles of election process and regulations that IEC is bound to develop. It should be further emphasized upon that in order to ensure effectiveness and executive capacity of such legislations, it is important to develop them in close consultation with the civil society organizations.

5. FEFA believes that the IEC should consider reviewing its entire set of policies in particular its policy with regards to the recruitment of permanent staff through a consultative process involving national and international observer organizations, civil society and political parties. b. The following regulations should be amended on priority basis

1. FEFA recommends that all electoral rules and regulations be reviewed and amended through close consultation with the civil society from the beginning of the process and should be approved so as to restrict any entity's rights, including the IEC to introduce changes in it once the electoral calender period has begun. Preventing frequent changing of electoral rules and regulations will enhance public confidence in the process and provide greater opportunities of public information dissemination. The experience of the 2009 election showed that timely provision of information on election rules and regulations or changing them can seriously affect their implementation.

2. The regulation on candidate expenses should be reviewed and amended. Imposing limitations on the amount of donations given to the candidates can ensure equal opportunities for all candidates, while imposing limitations on candidate expenses during the campaign period can facilitate monitoring of candidate expense reports, thus leading to increased transparency in the process. Obliging candidates to opening and running a single account for all election financial resources can also facilitate this process.

In order to ensure increased public confidence in the process, it is critical to not only keep record of candidate assets and expenses, but also share those details with general public.

This regulation should add further clarification with regards to the position of government officials such as members of parliament who act in support of a particular candidate.

3. The conditions of candidacy should be reviewed and changed in a way as to prevent huge numbers of candidates with little chance of success as well as to prevent the candidacy of incompetent individuals. Reforms in this area may include increasing the required number of signatures of thumbprints of persons residing in the constituency supporting the candidate's appearance may be increased.

The candidate should not only swear on nonexistence of relations with Illegally Armed Groups and no- conviction on crimes against humanity, but also swear on and confirm no-conviction in cases of fraud and corruption. This could be very effective now as we have national strategy on anti-corruption and there are special anti-corruption courts to process such cases. c. Voter Registration

1. For the voter registration in 2009 the manual system was used, which not only failed the IEC in developing an accurate and transparent list of voters, but also provided greater opportunity for election

- 106 - offences. We suggest that the computerized voter registration (CVR) system piloted in the year 2007 in Yakawlang of Bamyan Province, Bati Kot of Nangarhar Province and Nahia 10th of Kabul Province and welcomed by the people should be used in future elections, at least for the election 2014. This system which is being used in many countries throughout the world, can lead to a more accurate voters' list and thus create greater transparency. This system can also prevent election offences such as multiple voting, proxy voting and underage voting. d. Election Media Commission

FEFA believes that the EMC plays a significant role in monitoring and controlling media in particular state media. EMC can enhance the effectiveness of its role if the EMC has the authority to sanction media channels as well as their management.

IV. To the Election Complaints Commission

1. Develop a better public outreach mechanism and conduct a public awareness campaign in order to have a more open and well understood complaints process; this will also include simplifying the complaints form.

2. Ensure the neutrality of the ECC staff to build public confidence in the process.

3. Make decisions public, have greater media presence and develop readiness to give information to public, civil society organizations and media as and when required.

4. Publicize the process of adjudication of complaints and its findings.

5. Paragraph 5 of Article 52 of the Election Law gives due authority to the ECC to take initiative and address issues that fall within its bounds of authority. This leads to greater expectations from ECC in taking initiative of action in future in order to ensure greater transparency.

6. Also, the Commission should build its capacity to review and process complaints against electoral offences effectively and actively refer violators to prosecution agencies.

7. We further believe that the funding sources as well as technical support providers of ECC should be separate from funding sources of IEC in order to ensure greater independence of ECC. a. Election Complaints Mechanism

1. There are two separate lists that detail out different kinds of Electoral Offences and Sanctions and Penalties. What is missing is an accurate identification of severity of these offences and their categorization on these bases with corresponding sanctions and penalties. Such categorization could not only facilitate the work of the commission and speed up the process of addressing electoral offences, but also help those committing such offences predict the consequences of their act.

V. To the Civil Society Organizations

1. Support the IEC and ECC through developing better coordination and cooperation with them

2. Conduct extensive civic education especially amongst youth, women and rural populations.

3. Develop better coordination at the civil society level as to make doing joint programs easy.

- 107 - VI. To the International Donor Community

1. Ensure election security by ensuring greater coordination between the ISAF forces and the Afghan Security Forces.

2. Support the strengthening of the Afghan Security Forces.

3. Ensure neutrality, demonstrate it, and abstain from interfering or giving unnecessary political statements.

4. Support the civil society organizations and election observation organizations and build their capacity in order to strengthen their presence and role in election observation and running advocacy programs aimed at amending election laws.

Avoid seasonal approach towards election processes in Afghanistan. Only a long term commitment of the international community can help build a sustainable civil society enabled to play a better role in election monitoring and public awareness.

For those international organizations that support electoral processes, it is important for civil society support programs to be distinct from election administering entities' support program in order to increase effectiveness and reduce possible conflicts of interest.

5. Support the vetting process through contributing to the information on the illegal armed groups.

6. Support the development of political parties, and national and local representative bodies.

7. Support initiatives aimed at enhancing women and youth participation in the electoral processes.

8. Maintain pressure on government and electoral institutions to uphold standards and speak out against violations.

9. Support programs of voter education and civic education implemented by the Afghan government and the civil society organizations.

10. Pay special attention to efforts aimed at building the capacity of female election observers and increasing their numbers.

11. International observer organizations should develop their plans in cooperation and coordination with national observer organizations, so that during this process of mutual cooperation, on one hand, the capacity of national observer entities is built and on the other, the observation capacity of international observers is enhanced through greater presence of national observers.

- 108 - Annexes

Annex 1. Presidential Decree # 38

President Karzai issued a Decree on May 20, 2009 which instructed officials of the government of Afghanistan to abstain from interference in the electoral affairs. The purpose of the Decree was the conduct of free, fair and transparent elections, as well as to avoid the interference of the government officials during the presidential and provincial council elections of 2009. This decree approved the following arrangements:

The decree obliged the officials of the government institutions, including the Ministers, Deputy Ministers, Judges, Attorneys, and Heads of the government institutions, Governors, Deputy Governors and all officials of the Ministry of Defense, Ministry of Interior and the General Directorate of National Security to observe a number of points during the conduct of the elections. These points included non interference in the electoral process except where predicted in the law, refraining from actions that may influence the voters to unveil whom they have voted for or to force them to vote for a particular candidate, committing any action that can interrupt the principle of free, confidential and direct voting.

The Decree further instructed the above named officials to abstain from interfering in the meetings, preparation of meetings, gatherings, peaceful rallies, misusing the government resources and facilities in favor of or against any candidate and collection, misshaping of the posters or other electoral campaign material and resources of the candidates. This decree required these high level government officials to ensure the security of the candidates and voters and restrain from designation or termination of individuals on government positions for the purpose of electoral campaigning.

The Decree added that in case of violation of its provisions, the offender shall be taken under legal custody and face judicial pursuit. It also requested the UN agency, its relevant organizations and the international community to avoid any interference prior and after the electoral process that could jeopardize their impartiality.

- 109 - Annex 2. Taliban Statement Samples

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