Earlier this week, Afghan parliamentarians complained that Afghan President Hamid Karzai is still actively investigating the conduct of last September's parliamentary vote, and ongoing investigations by the Karzai-appointed Special Elections Tribunal threaten to unseat up to 80 of the certified winning parliamentarians, five months into the body's term of office. It is unclear which prliamentarians are being investigated or what they are accused of doing, however, because the tribunal has kept its findings secret. Afghanistan's Free and Fair Election Foundation (FEFA) has further criticized the tribunal for inspecting ballots without observers present and for failing to apply international standards in its work.
The Tribunal claims a dubious legal mandate to prosecute perpetrators of election fraud and remove guilty candidates from office. It was created by a presidential decree outside of the judicial framework of the Afghan constitution or its electoral law, and has been denounced as illegal by both the Independent Election Commission (IEC) and the parliament. Nevertheless, Karzai refuses to disband it, and ambiguities in the constitution (and uncertainty over who even gets to interpret the constitution) have created a legal fog around the question of whether members of parliament who are under investigation could actually lose their seats. Given the lack of an independent judiciary in Afghanistan, MP's cannot be sure that there will be any recourse in the Afghan courts for a political decisions made by the Tribunal.
The fate of the Tribunal matters in the short term because President Karzai is expected to put forward at least seven cabinet nominations in the next few weeks that require parliamentary approval. A seat in parliament is a significant source of both patronage and pride, and potentially costs tens of thousands of dollars in campaign funds to obtain. Therefore, the threat of an adverse finding by the Tribunal remains a potent political pressure point against sitting members of parliament to vote for Karzai's nominees.
Continued operation of the Tribunal is also a long-term issue, because its existence undermines the independence of the lower house of parliament (Wolesi Jirga) and the rule of law. Many Afghans view the current battle as a test case for whether Karzai can get away with overstaying the constitutional two term limit for the presidency in 2014. Many longtime observers also fear a repeat of the pattern that was followed after the 2005 elections, when the international community ignored electoral issues until just before the 2009 elections, at which time it was too late to implement effective reforms.
Buying Votes and Blocking Reforms
Leading opposition figure Dr. Abdullah Abdullah said recently in public remarks at the U.S. Institute of Peace that the Tribunal was used to influence the vote over the Speaker of the Parliament, which went to a relatively unknown Uzbek candidate after Karzai's preferred candidate Abdul Rasul Sayyaf deadlocked with opposition MP Yunus Qanooni for votes. Many expect the same strategy to be used to promote otherwise unpopular ministers. In addition to upcoming votes on Cabinet appointments, one can imagine the leverage of investigations being used to encourage cooperation on votes regarding the Strategic Partnership Agreement with the United States and reconciliation with the Taliban.
The Special Election Tribunal is also being used as a weapon against the Chairman and Chief Electoral Officer of the Independent Election Commission (IEC) as well as former Electoral Complaint Commission members. The IEC's bold action against fraud during the election prevented several Karzai allies and prominent power-brokers from winning seats. The international community has supported the IEC's work, but keeping electoral officials under investigation has severely limited their ability to promote positive electoral reforms in the wake of two manifestly bad elections in 2009 and 2010. If the composition of the Parliament is ultimately changed through an extra-legal process, it will gut the authority of the IEC and Electoral Complaints Commission (ECC), making it nearly impossible to establish strong and independent electoral authorities for the 2014 elections.
Legitimizing the work of the Tribunal would also undermine efforts to make needed electoral reforms. The IEC, many parliamentarians, the political opposition, international community, and election and democracy experts generally agree on what is needed to sustain the democratic system in Afghanistan, including establishing a reliable voter registry and changing the voting system to empower political parties. The problem is that the Afghan government views the old system, which has produced two highly fraudulent elections, as working toward its advantage, and Karzai has demonstrated no desire for reform.
While the international community supports a reform agenda, it lacks the stamina and political will to continue focusing high-level diplomatic attention on the issue. The international community has been particularly marginalized by continuing attacks from Karzai, who accuses foreigners of committing fraud themselves, and using electoral mechanisms to plot his downfall. The shrinking of space for public dialogue on electoral reform by the international community plays to Karzai's political advantage, because it further saps energy from the task and cedes the field to Karzai and his allies.
Right Problem, Wrong Solution
The 2010 elections were full of irregularities, to be sure. But much of the most egregious fraud was addressed by the IEC, which excluded 1.3 million tainted votes from the final tally, and the ECC, which excluded at least 34 candidates for election related misconduct.
The problem was that the electoral authorities' fraud investigations were not well communicated to the public or the candidates. Losing candidates complained to Karzai that they were unfairly treated, and there was little evidence to the contrary. Many of them were either allies or representatives of key constituencies of the president, and rather than supporting the electoral authorities he appointed, he sided with the losing candidates and ordered his attorney general to investigate.
According to the Electoral Law, the IEC and the ECC have ultimate jurisdiction over election related complaints. Therefore, the Tribunal has no authority to revisit or overturn the certified election results and their ballot counting exercise is rightly criticized as an illegal, or at least irrelevant. As a separate matter, it is possible that if either a candidate or an electoral official committed a crime, such as buying votes, that action could merit their removal from office. But such criminal charges must be investigated by the attorney general and then prosecuted in an independent court applying all the Afghan laws of due process (including an open trial and an opportunity for defendants to see and refute available evidence). In this case, however, the Tribunal is acting as both prosecutor and judge, despite its apparent lack of any legal authority.
As the matter drags on, with broken promises by the president to the parliament that he would disband the Tribunal (note again that the request goes to the president and not to the Supreme Court for that authority), the government is claiming that no decisions will be taken without full rights of appeal up to the Supreme Court. It is too late to rescue the court's legitimacy, however, because its investigations have already been conducted outside the bounds of a court's role under Afghan law. More likely, this change in position was designed to keep the pressure on parliamentarians by indicating that the cloud over their tenure could remain there through years of appeals.
Pressing for Reforms
The international community has largely ignored the Special Elections Tribunal, and it might be tempting to dismiss its work as mere political posturing that will probably have no ultimate effect on the results. The danger of this approach is that it fails to account for the damage the tribunal is doing to the legitimacy and effectiveness of parliament as a check on executive power in Afghanistan. It also discounts the deleterious effects that the political manipulation of the electoral system has on the judicial process and the rule of law.
The stakes of this game are high. If the international community ignores the details of due process in this case, then it will send a strong signal to the government that when it comes to more important matters down the road, including ultimately whether President Karzai must abide by the constitution's two-term limit, there is room to negotiate. This step could be very destabilizing as the United States seeks a peaceful withdrawal from Afghanistan.
The international community therefore needs to make it clear both publicly and privately that it will not view any removals by the Tribunal as legitimate until all due process has been accorded under Afghan law - including a public trial in which the defense has an opportunity to review and rebut the evidence involved. The international community should go further and declare that the Special Elections Tribunal is an illegitimate arbiter of election results, and reaffirm its prior commitment to the decisions of the IEC. Additionally, the international community should privately seek a deal in which the Tribunal is disbanded soon, even if that includes endorsing changes to the leadership of the "power ministries: like Interior, Defense, and Finance it would not otherwise prefer.
Looking ahead to the scheduled 2014 elections, it is clear that in the current political environment the main actors and the main impetus for electoral reform must come from Afghans. Based on meetings with IEC officials and groups working with parliament, there seems to be a strong and coherent desire by different Afghan groups to push the reform agenda. The problem is that those groups are themselves marginalized by a lack of international attention and resources and by the Special Election Tribunal's secret investigations.
While it may upset Karzai, there must be a bridge of international support between reformers within political parties, parliament, and the IEC to press for changes to the electoral system if the 2013 or 2014 elections are to have any chance at being more legitimate than the past two. This includes having an electoral law that is properly passed by the parliament, and that reforms the voting system and strengthens the independence of the electoral management bodies. The international community must also support the creation of strong political parties that can better engage voters and police the system themselves rather than relying on the international community to do it for them.
Perhaps most importantly, the international community should engage in a dialogue with President Karzai to illustrate the need for a peaceful political succession after his term ends in 2014, in order to cement his legacy as a successful Afghan leader. Otherwise, government attempts to undermine the parliament and the electoral authorities could wind up crippling the democratic system itself, and not just a few political opponents.
Scott Worden is a Senior Rule of Law Advisor at the U.S. Institute of Peace. He served as a Commissioner on the 2009 Afghanistan Electoral Complaints Commission and was an observer of the 2010 Parliamentary Elections.
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