Afghanistan's Independent Election Commission (IEC) announced the full preliminary results of the Afghanistan Parliamentary elections on October 20 after invalidating 1.3 million votes it found were fraudulent - roughly the same number of votes that were invalidated by the Electoral Complaints Commission (ECC) in last year's tainted Presidential vote. 

Three weeks later, however, the electoral process remains mired in uncertainty, as candidates and the government have questioned why votes were invalidated and why certain candidates have been removed from the race after Election Day.  Protests have become frequent occurrences in Jalalabad, Khost, Kabul and Herat.  Afghan media have aired a variety of audio and video recordings purporting to catch government and IEC officials in the act of committing fraud - the most sensational of which allegedly involves Minister of Energy and Water Ismail Khan seeking to have a candidate in his native Herat province pushed out of the winners circle.

Welcome to the messy end-game of Afghanistan's second Parliamentary election.

Politics and Process Collide
There are two reasons for the current unrest over the results.  First, as soon as the full preliminary results were released, the political landscape of each Province became clear and a new balance of power in the Parliament emerged.  Powerful political figures who were not among the list of winners had nothing to lose by appealing to the public and the government to change perceived injustice.  (Some candidates are particularly outraged because they know they committed fraud and would have won but for the IEC's exclusion of their invalid votes.)

Moreover, the preliminary winners list revealed which ethnic and political factions had gained or lost ground, giving losing groups a strong interest in attacking the process.  The Washington Post reports that "members of Karzai's ethnic group performed poorly in the election, with Pashtun candidates appearing to have lost 10 to 20 seats. In the majority-Pashtun province of Ghazni, where insurgents disrupted the voting, preliminary results gave all 11 seats to candidates of the Hazara ethnicity. That outcome could complicate government efforts to reconcile with the Taliban, which is predominantly Pashtun."

Accusations from losing candidates were to be expected.  A lack of transparency in the process of invalidating ballots and deciding complaints, however, gave disgruntled candidates significantly more ammunition to attack the legitimacy of the results than they should have had.  While the IEC acted bravely and pro-actively to address widespread fraud, it failed to fully disclose what its exact criteria were for determining which ballots were invalid and which reasons applied to specific polling stations that were removed from the count (Stated reasons include impossibly high numbers of votes per station; stations that were reported closed but produced results sheets; and tampered forms - each of which are valid grounds to exclude votes generally, but the IEC has not disclosed which reasons apply to particular polling stations).

The Electoral Complaints Commission has compounded doubts about the electoral process by excluding individual candidates from the process - including several who would have otherwise won seats in Parliament - without clearly explaining why.  In some cases candidates were excluded for failing to resign from government positions at the time of their nomination in July. Unlike last year, several of these cases were decided only after the election, raising questions about whether political motives lay behind the complaint.  The ECC has also taken the controversial position that it is not authorized to hear complaints about IEC decisions, leaving Afghan citizens without any legal process to question why their votes may have been excluded and to protect their Constitutional right "to elect and be elected."

Procedural weaknesses in the IEC and ECC's decisions have left an opening for the Karzai government to step in as well, which threatens to undermine the independence of the electoral process. Last week, the Attorney General's office announced that it will investigate individual cases of misconduct by IEC staff as well as the basis for the IEC's invalidation of ballots.  While the IEC's provincial staff likely played a role in the fraud in several cases and should be held accountable, under the current electoral system neither the Attorney General nor the courts have a role in determining electoral results.  The Attorney General may investigate crimes like bribery or extortion that were committed during the electoral process, but those found guilty would be subject to imprisonment or fines after a trial regardless of what the IEC or ECC decide on the validity of related votes.

Finally, there are concerns that President Karzai is seeking to intervene with election officials to arrange for new elections in certain provinces where the results appear skewed toward one faction or another and to have particular candidates removed from the election for alleged misconduct during the vote.  While it would be appropriate for the President to work with electoral officials to ensure an orderly and secure certification of results, there is a line between appropriate consultations and pressure to arrange a particular political outcome.

Election Lessons Unlearned
No one expected this year's vote to go smoothly given the scale of the fraud that occurred during the 2009 elections and the limited time since then to achieve fundamental reforms.  But one could have hoped that political management of the process would improve.  Instead, it appears that few lessons were learned about the importance of ensuring transparency of the process and the need to better monitor and enforce the non-interference of government officials with a fair vote.

The IEC's aggressive approach to fraud is a welcome change from the 2009 election, when the same body, under different leadership, took the position that it was not authorized to eliminate any ballots for fraud.  But by holding on to information in an attempt to not anger powerful political figures too early, they undermined their own credibility and now have less political capital to use against pressure from their critics when it counts.

The ECC, on the other hand, has taken a very narrow interpretation of its mandate and its decision not to accept complaints about IEC ballot invalidations removes a key check on the process and has left many candidates and voters without an effective means of redress.  Moreover, provincial ECC offices have not been sufficiently transparent on the reasons why they have either removed votes or removed candidates from the process, fueling suspicions that the process is politically biased. 

This perception of possible political interference is heightened by the fact the President amended the election law in February through an emergency decree, which gave him authority to approve all provincial complaint commissioners.  Beyond the ECC, it seems the government did very little to prevent its own employees from interfering in the electoral process in many provinces, and there are credible allegations that security services in some provinces were complicit along with IEC workers in the fraud.

Fixing the Final Results
The stakes in this final act of the election drama are high, including ethnic and tribal balances of power within several key provinces, the strength of the opposition to President Karzai in the Parliament, the overall legitimacy of the Parliament, and the legitimacy and independence of future Afghan polls. With that in mind, it is important to preserve what is left of the process so that no further damage is done to the rule of law or the credibility of the final results.

• First, the IEC should resist demands from the Attorney General's office to intervene into an examination of the results, but should voluntarily publish the specific reasons that each invalidated polling station was removed from the results and any revised tally sheets that resulted from recounted polling stations. This is fundamental to advancing the rule of law, as well as satisfying voters and candidates that their votes haven't been eliminated in an arbitrary way.

• Second, the ECC or the IEC must allow candidates to present evidence that ballot invalidations were the result of a clear administrative mistake (such as polling station numbers being transposed) or gross negligence on the part of IEC staff (including bribery). This will preserve some level of due process without opening the floodgates to a re-interpretation of the results.

• Third, for any candidate being removed from the election, the ECC should fully disclose at the time of the decision when the case was filed, what evidence was presented of a violation, and which article of the Electoral Law was violated. The ECC also should publish explanations for why results for only one candidate were invalidated within a polling station. This will enable candidates who are excluded by decisions of the provincial ECC offices to exercise appeal rights to the ECC in Kabul, and will help to protect against any accusations of political bias.

• Finally, the government and international community should each insist on a rigorous application of the electoral law and rules so that the result of the election is determined through a documented and transparent process rather than back room dealing that will potentially leave all new members of Parliament under a cloud of suspicion. This will require political leadership and a clear signal that subsequent decisions are driven by the need to act in the best interests the country and its citizens, and not through the prism of any political agenda.

Scott Worden is a Senior Rule of Law Advisor at the U.S. Institute of Peace and was an election observer during this year's Parliamentary vote.  He also served as a Commissioner on the Electoral Complaints Commission in 2009 and was a legal adviser to the Joint Election Management Body during the first Parliamentary elections in 2005.