Afghanistan Election Conundrum (15): A contested disqualification of candidates Author : Ali Yawar Adili Published: 7 October 2018 Downloaded: 6 October 2018 Download URL: https://www.afghanistan-analysts.org/wp-admin/post.php The campaign by more than 2,600 candidates to secure votes in the Afghan parliamentary elections is in full swing, for over a week now. 35 would-be MPs, however, are not running. They have been barred from standing by the Electoral Complaints Commission, chiefly for ties to illegal armed groups. In this piece, AAN’s Ali Yawar Adili looks at the vetting provisions and procedures. He concludes that a fair and complete vetting of candidates in Afghanistan, plagued by conflict and awash with illegal weapons and armed men, would always be a high-wire act. However, the vetting ahead of this election has again prompted questions about the transparency and completeness of the process. It has left doubts as to why some candidates have been allowed to stand for parliament and these particular 35 have not been. (Both the vetting procedure and the lists of candidates who have been disqualified, ‘warned’ and ‘advised’ can be found in annexes to this dispatch.) AAN has put together a dossier of dispatches related to the coming elections, looking at preparations and political manoeuvring. Each dispatch in the Election Conundrum series will be added to it. 1 / 19 The Electoral Complaints Commission (ECC) announced the disqualification of 35 parliamentary candidates, mainly for links with illegal armed groups on 11 August. (Other reasons for disqualification include having criminal records or not meeting various eligibility requirements.) Many of those excluded from standing disputed the decision and, together with their supporters, blocked and shut down the Independent Election Commission (IEC) headquarters in Kabul and nine provincial offices: Faizabad, Gardez, Kabul, Kunduz, Pul-e Alam, Charikar, Pul-e Khumri, Samangan and Taloqan. As the United Nations Secretary General’s report to the Security Council highlighted, the closure of the IEC headquarters “effectively halted the process of entering data in the voter registry and the retrieval of voter registration books from a number of provinces, among other electoral preparations.” According to article 44 of the electoral law, people who are members or commanders of illegal armed groups cannot run as candidates and the responsibility to investigate their links to illegal armed groups rests with a Vetting Commission. The commission is constituted as part of the ECC. It is headed by the EEC chair, Abdul Aziz Ariayi, and includes representatives from the National Directorate of Security (NDS), the Ministries of Interior and Defence and the Independent Directorate of Local Governance (IDLG). These institutions are supposed to provide the ECC with the needed intelligence about candidates. A list of candidates found to have links to illegal armed groups is recommended to the ECC for disqualification, which then takes the final decisions. The requirement to exclude candidates with links to armed groups had existed in earlier versions of the electoral law (34 and 36 candidates were disqualified in 2005 and 2010, respectively). It was removed in 2013 (see AAN’s previous reporting here) and then reintroduced in 2016 in the electoral law governing the current round of elections. Looking at this new law in 2017, AAN wrote: The vetting of candidates with links to illegal armed groups has been a complicated affair in the past, as these links were often difficult to persuasively prove (at least, this could be argued). As a result, the most powerful commanders were usually unaffected by the process. In the 2005 parliamentary election, for example, out of 208 candidates put forward by election stakeholders for disqualification for having links to illegal armed groups, only 34 were finally barred from running. Ahead of the 2010 parliamentary elections (see this AAN report), NDS offices had reportedly collected evidence against about 220 candidates, but only 36 candidates were finally disqualified. The question of which candidates would be disqualified and which not, based on that evidence, was more of a process of political bargaining and pressure, than of strictly applying the legal provisions. In the run-up to the October 2018 elections, there seemed to be a demand from among the people for disqualifying candidates tied to illegal armed groups. For instance, on 31 July, Ariana News reported that people from different parts of the country had demanded the disqualification of ‘strongmen’. Sima Samar, chairwoman of the Afghanistan Independent Human Rights 2 / 19 Commission (AHIRC), it reported, had said that dossiers of individuals accused of human rights violations had been sent to the relevant institutions. A source from the AIHRC clarified to AAN that it had not, itself, sent the dossiers, but had responded to enquiries about individual candidates. ECC secretary and spokesman Ali Reza Rohani told AAN on 29 August that the ECC had acted upon the provisions of the law to disqualify the candidates and that this was an obligation the ECC had to fulfil. However, given the presence of many militias and strongmen in the country, the concern is that the legal provisions were, yet again, have been applied selectively and unevenly. The ECC’s Rohani told AAN that he personally believed the vetting of candidates with links to armed groups should not have been included in the electoral law. He said that if such a provision was to be enacted, it should have been limited to “extremely serious and specific cases and exact, objective and measurable indicators for identifying them should have been set in the law.” He said that when he had been summoned to brief the Wolesi Jirga on the vetting process, he told the parliamentarians the provision was a double-edged sword: on one hand, it was good that it could lead to candidates linked to illegal armed groups being excluded, but on the other hand, “if not applied properly, it could be exploited against certain factions.” Rohani dismissed the idea that it had actually been used against certain candidates affiliated with certain factions, perhaps in order to steer clear of getting into detailed discussion about why certain individuals had been excluded. (1) The legal framework There are two main articles in the electoral law which serve as a basis for vetting candidates. Article 39 says that anyone standing in an election must have been born an Afghan citizen or obtained Afghan citizenship at least ten years before nomination day; they should not have been convicted of crimes against humanity or felonies or have been deprived of their civil rights by a court and; they should be 25 years old. (2) Article 44 of the same law says that commanders and members of an illegal group cannot stand in elections and imposes certain other restrictions, for example, sitting judges, governors or security forces officers cannot stand unless they resign from their posts. (3) It also authorises the setting up of the Vetting Commission. Any objections to the commissions decisions are then to be adjudicated by the ECC, whose decisions are final. The electoral law provides no procedures or criteria for disqualification. This was remedied by the Vetting Commission on 21 June when it approved a procedure aimed at implementing the objectives of article 44. (The procedure is available on the ECC website in Dari here and an English translation can be found in Annex Two at the end of this piece.) The procedure defines an illegal armed group as “a group of people which has a physical armed presence and is involved in the spread of insecurity, perpetration of organised crimes, smuggling of drugs, usurpation of public and private properties, cooperation with the enemy, 3 / 19 violation of human rights and other illegal instances.” It defines a commander as “a person… directly or indirectly heading an illegal armed group” and “using that group” for the above- mentioned crimes, and a member as someone who “actively participates” in or “directly benefits” from the activities of an illegal armed group. Funders of illegal armed groups are considered members. While armed groups are mainly defined by their activities, commanders and members are defined by a person’s connections to the group. The procedure also sets out the duties of the Vetting Commission: collect and compile corroborating evidence against accused candidates; scrutinise any complaints received by the ECC and referred to the commission; establish whether candidates do belong to or command illegal armed groups, based on the documents and evidence collected and; provide the required information to the ECC. People can file an objection to a particular candidate running with either the ECC centrally or the Provincial Electoral Complaints Commissions (PECCs). These temporary bodies have to be set up a month ahead of candidate nomination (article 31). (4) Each PECC comprises three members: a man and a woman appointed by the ECC centrally and a third member appointed by the Independent Human Rights Commission of Afghanistan and approved by the president. Nominations to stand for parliament began on 26 May. This means the PECCs should have been established by 26 April. However, it was only on 27 July, more than three months after the legal deadline, that the president finally appointed the PECCS’ 102 commissioners. The ECC spokesman told AAN this was the fault of the government, not of the ECC, as it had submitted the list of candidates well before the legal deadline.This late appointment seriously hindered the ECC’s ability to address complaints related to candidate nomination. The UN Secretary General’s report to the Security Council criticised the time lost: “As a result of the delayed appointment of commissioners, out of 680 complaints received, only 240 had been adjudicated, as of 20 August.” The EEC’s Rohani told AAN there were two types of adjudications: two-phased, when complaints are first reviewed by a PECC or by the Vetting Commission and then reviewed and adjudicated by the ECC, and one-phased complaints which are filed directly with ECC headquarters and addressed only by it.