In January of this year, Afghan President Hamid Karzai yielded to domestic and
international pressure and endorsed the seating
of the new Afghan parliament against the recommendation of a Special Court he
created to evaluate election fraud claims. Few would have predicted then that
six months later Karzai's Court would bring the country to the brink of
complete political collapse.
Afghanistan's
2010 parliamentary elections were yet another reminder of the extraordinary difficulty
of administering elections in the midst of a wide scale counter-insurgency
effort. Like the 2009 presidential elections, the September 2010 Wolesi Jirga, or lower house of
parliament, elections, were marred by widespread fraud, with more than a
million votes ultimately invalidated. Despite the pervasiveness of fraud, the
process did offer some hope for the nascent democracy. Afghanistan's
Independent Election Commission (IEC) showed strong signs that despite enormous
external pressure, it could exercise the necessary independence and
impartiality that observers felt was lacking in 2009.
The results of the election were not favorable to Karzai, who fought throughout
the process for ways to advantage his political allies. In the pre-election
period this included unsuccessfully advocating, against
the recommendation of the IEC, for the opening of 87 additional polling
stations in some of the country's most insecure districts. After election day,
President Karzai expressed
his dissatisfaction with the results from Ghazni province, where Hazara
candidates swept the seats despite the presence of a Pashtun majority. The Special Court would
become President Karzai's favorite instrument to remind the new members of
parliament that it was he who truly controlled their political fate.
Last year, after Afghanistan's
Electoral Complains Commission (ECC) referred
hundreds of cases to the attorney general (AG) to review whether candidates
had committed criminal offenses, the AG decided to submit 232 candidates to Afghanistan's
Supreme Court for adjudication, despite no provision in the electoral law authorizing
it to do so. In the weeks that followed, it became clear that the AG was not guided
by a legal framework but motivated by a preferred political outcome. Indeed, the
AG's office was
outspoken in voicing its desire that the results of the elections should be
invalidated entirely.
On the 21st of December, the Supreme Court took the next
step by recommending
that President Karzai establish a Special
Court to further investigate and adjudicate the
claims of disaffected, defeated candidates. On the 26th of December,
President Karzai approved
the creation of a Special Court
through presidential decree and named Sadiqullah Haqiq, head of the Kabul Court
of Appeals, to lead the court. According to the president and the Supreme
Court, the Special Court
would begin investigating results, and would have the authority to make changes
to the results of the September elections.
Shortly after the creation of the court both the IEC and ECC disavowed
the court and reaffirmed
their position that the authority to administer elections and announce
results was the sole duty of the IEC and adjudication of complaints was that of
the ECC. The international community publicly
supported the independence of the country's legitimate electoral
institutions and called on all actors to respect their decisions.
Often, it is ambiguity in the Afghan legal framework that causes such
political impasses. In this instance, however, the law is clear. The
constitution, through Article 156, establishes the IEC as the sole authority
for the administration of elections and grants it exclusive authority for the
announcement and certification of election results. Neither the constitution
nor the electoral law sanctions the creation of a special court to review
election results. Nor does either document grant the Supreme Court or Attorney
General the authority to engage in electoral affairs.
The idea for the creation of the court likely did not originate with the
Supreme Court, but directly from within the president's office; rather, during
Democracy International's observation of the process, many well-connected Afghans
reported to us that the idea came from two of President Karzai's own legal
advisors, who were seeking out ways to alter the results of the September elections
that had strengthened opposition to Karzai in the parliament.
After months of the Special
Court reportedly conducting re-counts and
investigations throughout the provinces, it finally announced a
ruling on June 22 in which it declared that 62 sitting members of the parliament
should be replaced. The decision launched the country into a political crisis
and elicited an immediate reaction from parliament, which voted for the removal
of the attorney general and six members of the Supreme Court. The crisis
reached new proportions last Wednesday, when the parliament began debating
the impeachment of the president, who has reportedly proposed his own list of 17
candidates to the IEC who should be immediately certified as winners. The
instability has, according to Afghan news sources, motivated members of
parliament to begin carrying firearms
into sessions of parliament, and has resulted in physical altercations between
MPs.
The authority to arbitrate constitutionality lies with Afghanistan's
Independent Commission for the Oversight of the Constitution. In this instance,
however, the commission has only contributed to the confusion. In January, the commission
reportedly
met with a group of MPs and expressed its opinion that the establishment of the
Special Court
was illegal. This was reported widely at the time in Afghan newspapers. Just
last week, in an apparent about face, the constitutional commission issued a decision
stating that the IEC should cooperate with any bodies investigating election
issues. To complicate matters further, a member of the constitutional
commission appeared on TOLO television (the nation's most popular political
news outlet) the next day and declared the Special Court illegal and explained that
the decision of the commission had been misunderstood.
The implications of the Special Court's ruling are serious, and
the willingness of the president to embrace its legitimacy threatens to
undermine more than just the parliament. If the court's decision is ultimately
respected and the makeup of the parliament is altered, the legitimacy and
credibility of the IEC and future Afghan elections will forever be tainted.
Candidates and their supporters are unlikely to respect the authority of an
election commission whose decisions they know can be trumped by ad-hoc courts.
In addition, if the Special Court
brings criminal charges against sitting parliamentarians, it will also
undermine the authority of Afghanistan's
legitimate judicial bodies. At a time
when a country struggling to establish robust democratic institutions needs
support from its executive, that executive seems all too willing to endorse the
defanging of those institutions.
The political implications are even more
serious. If Karzai's Court is successful at shaking up the composition of the
lower house, the effects could be felt far beyond the body's votes on the
president's initiatives. The president would then likely have a parliament more
amenable to his call for a Loya Jirga,
a powerful traditional body that has the authority to amend the constitution.
The current parliament has
called the president's plans for a Loya
Jirga unconstitutional, on the basis that chairpersons of district
councils, who are constitutionally mandated delegates to a Loya Jirga, have not yet been elected. Not only would President
Karzai likely have the support in the lower house to move forward with his
plans, he would also have 62 more votes in favor of whatever agenda he decides
to pursue within the jirga, including
a possible constitutional amendment to allow him to seek a third term.
With no clear ending in sight, the
president, by supporting the actions of a Special Court with no legal authority,
has brought the country to the brink of political collapse. What happens next
is anyone's guess. The IEC has so far shown resolve against Karzai and has
reportedly presented him a plan to solve the impasse. While details of the
plan have yet to be released, there are rumors circulating that it would require
President Karzai to declare the Special
Court illegal and to honor the independence of the
IEC and the credibility of its decisions. In return, the IEC would agree to
review some previous decisions of the ECC, which it believes is allowed under
Article 65 of Afghanistan's Electoral Law.
If the president disagrees with the IEC's
plan, he could always attempt to replace the leadership of the IEC, which is
within his constitutional rights, and thus pave the way for the implementation
of the Special Court's
decision. This would not, however, prevent the likely violent backlash from the
62 parliamentarians the Special
Court is threatening to remove. Perhaps a more
likely outcome is for the AG to circumvent the IEC altogether and begin
implementing the Court's decisions himself, as he has promised
recently to do. This would likely entail arrests of sitting MPs and would
undoubtedly lead to political chaos and possibly violence.
The crisis created by Karzai's Court underscores
the necessity for a genuine Afghan led dialogue on democratic reform. Options
must be explored to strengthen the independence and resilience of Afghanistan's
democratic institutions. To achieve any level of democratic sustainability,
Afghan politicians must operate on a stronger democratic foundation, one
developed with the support of civil society and the very institutions President
Karzai is attempting to delegitimize (the IEC, the ECC, and the lower house of
parliament). If the international community and the Government of Afghanistan
do not begin to take democratic reform seriously, a strong democratic Afghanistan
will become even more of a fantasy than it is now.
Jed Ober is Director of Programs
at Democracy International. Throughout 2010, he served as Democracy
International's Chief of Staff in Kabul where he
oversaw the largest international election observation mission to Afghanistan's
2010 parliamentary elections. Democracy International's final observation
report can be downloaded at www.democracyinternational.com.