Plagued by factionalism and corruption,
Afghanistan is far from ready to assume responsibility for security when
U.S. and NATO forces withdraw in 2014. That makes the political
challenge of organising a credible presidential election and transfer of
power from President Karzai to a successor that year all the more
daunting. A repeat of previous elections’ chaos and chicanery would
trigger a constitutional crisis, lessening chances the present political
dispensation can survive the transition. In the current environment,
prospects for clean elections and a smooth transition are slim. The
electoral process is mired in bureaucratic confusion, institutional
duplication and political machinations. Electoral officials indicate
that security and financial concerns will force the 2013 provincial
council polls to 2014. There are alarming signs Karzai hopes to stack
the deck for a favoured proxy. Demonstrating at least will to ensure
clean elections could forge a degree of national consensus and boost
popular confidence, but steps toward a stable transition must begin now
to prevent a precipitous slide toward state collapse. Time is running
out.
Institutional rivalries, conflicts over
local authority and clashes over the role of Islam in governance have
caused the country to lurch from one constitutional crisis to the next
for nearly a decade. As foreign aid and investment decline with the
approach of the 2014 drawdown, so, too, will political cohesion in the
capital. To ensure political continuity and a stable security
transition, action to correct flaws in the electoral framework and
restore credibility to electoral and judicial institutions is needed
well before the presidential and provincial council polls. Tensions have
already begun to mount between the president and the Wolesi Jirga (the
lower house of the National Assembly), as debate over electoral and
other key legal reforms heats up. Opposition demands for changes to the
structures of the Independent Elections Commission (IEC) and Electoral
Complaints Commission (ECC) and an overhaul of the Single
Non-Transferable Vote (SNTV) election mechanism have become more
vigorous by the day.
There is also, as yet, no sign of an
agreement on the timing of the 2014 elections or the following year’s
parliamentary elections, though President Karzai insisted on 4 October
that the former would be held on time and “without interruption”. The
IEC has hedged on publicly announcing the planned postponement of the
provincial council polls, for fear that such an announcement could
deepen the political crisis. At a minimum, the IEC must announce a
timetable and a plan for the 2014 elections that adhere closely to
constitutional requirements by December 2012, and a new IEC chairman
must be selected to replace the outgoing chairman, whose term expires in
April 2013, as well as a new chief electoral officer.
It is a near certainty that under current
conditions the 2014 elections will be plagued by massive fraud. Vote
rigging in the south and east, where security continues to deteriorate,
is all but guaranteed. High levels of violence across the country before
and on the day of the polls are likely to disenfranchise hundreds of
thousands more would-be voters. The IEC will likely be forced to throw
out many ballots. This would risk another showdown between the
executive, legislature and judiciary. Under the current constitution and
electoral laws, the government is not equipped to cope with legal
challenges to polling results. Nearly a decade after the first election,
parliament and the president remain deeply divided over the
responsibilities of constitutionally-mandated electoral institutions.
The IEC, its credibility badly damaged after the fraudulent 2009 and
2010 elections, is struggling to redefine its role as it works to reform
existing laws. There is also still considerable disagreement over
whether the ECC should take the lead in arbitrating election-related
complaints.
It will be equally important to decide
which state institution has final authority to adjudicate constitutional
disputes before the elections. The uncertainty surrounding the
responsibilities of the Supreme Court versus those of the
constitutionally-mandated Independent Commission for the Supervision of
the Implementation of the Constitution (ICSIC) proved to be a critical
factor in the September 2010 parliamentary polls. The Supreme Court’s
subsequent decision to establish a controversial special tribunal on
elections raised serious questions about its own impartiality.
Institutional rivalries between the high court and ICSIC have increased
considerably since then, with the Wolesi Jirga aggressively championing
the latter’s primacy in opposition to the president.
The tug of war between these two
constitutionally-mandated institutions has extended to Supreme Court
appointments; two of nine positions on the bench are held by judges
whose terms have already expired, and the terms of three more expire in
2013. The ICSIC faces similar questions about its legitimacy, since only
five of its required seven commissioners have been appointed by the
president and approved by parliament. Ambiguities over the roles of the
Supreme Court and the constitutional commission must be resolved well
before the presidential campaign begins in earnest in early 2013. An
important first step would be to appoint the required judges and
commissioners.
Institutional rivalry between the high
court and the constitutional commission, however, can no more be
resolved by presidential decree than it can by a simple parliamentary
vote. Constitutional change will ultimately be necessary to restore the
Supreme Court’s independence and to establish clear lines of authority
between it and the ICSIC. Even if wholesale constitutional change is not
possible in the near term, legal measures must be adopted within the
next year to minimise the impact of institutional rivalry over electoral
disputes and to ensure continuity between the end of Karzai’s term and
the start of the next president’s term.
Although Karzai has signalled his intent to
exit gracefully, fears remain that he may, directly or indirectly, act
to ensure his family’s continued majority ownership stake in the
political status quo. This must be avoided. It is critical to keep
discord over election results to a minimum; any move to declare a state
of emergency in the event of a prolonged electoral dispute would be
catastrophic. The political system is too fragile to withstand an
extension of Karzai’s mandate or an electoral outcome that appears to
expand his family’s dynastic ambitions. Either would risk harming
negotiations for a political settlement with the armed and unarmed
opposition. It is highly unlikely a Karzai-brokered deal would survive
under the current constitutional scheme, in which conflicts persist over
judicial review, distribution of local political power and the role of
Islamic law in shaping state authority and citizenship. Karzai has
considerable sway over the system, but his ability to leverage the
process to his advantage beyond 2014 has limits. The elections must be
viewed as an opportunity to break with the past and advance
reconciliation.
Quiet planning should, nonetheless, begin
now for the contingencies of postponed elections and/or imposition of a
state of emergency in the run up to or during the presidential campaign
season in 2014. The international community must work with the
government to develop an action plan for the possibility that elections
are significantly delayed or that polling results lead to prolonged
disputes or a run-off. The International Security Assistance Force
(ISAF) should likewise be prepared to organise additional support to
Afghan forces as needed in the event of an election postponement or
state of emergency; its leadership would also do well to assess its own
force protection needs in such an event well in advance of the election.
All this will require more action by
parliament, less interference from the president and greater clarity
from the judiciary. Failure to move on these fronts could indirectly
lead to a political impasse that would provide a pretext for the
declaration of a state of emergency, a situation that would likely lead
to full state collapse. Afghan leaders must recognise that the best
guarantee of the state’s stability is its ability to guarantee the rule
of law during the political and military transition in 2013-2014. If
they fail at this, that crucial period will at best result in deep
divisions and conflicts within the ruling elite that the Afghan
insurgency will exploit. At worst, it could trigger extensive unrest,
fragmentation of the security services and perhaps even a much wider
civil war. Some possibilities for genuine progress remain, but the
window for action is narrowing.
RECOMMENDATIONS
To assure a peaceful political transition in 2014
To the Independent Elections Commission (IEC):
1. Announce no later than December 2012 a
date for the 2014 presidential election and publicly outline a realistic
timetable for the launch of a new voter registry program.
2. Conduct jointly with the ELECT II
support program of the UN Development Programme (UNDP) a feasibility
study on modifying the voting mechanism to include a mixed system that
combines proportional representation with the Single Non-Transferable
Vote (SNTV) system as an interim step; and undertake an evaluation of
prospects for a gradual move to full proportional representation by
2019.
To the Parliament:
3. Reach internal consensus before April
2013 on reforms to the electoral law and the law on the structure of the
IEC; negotiate a compromise with the president on such critical issues
as seat allocations for nomadic tribal groups (kuchis) and women
and a move to a mixed voting mechanism; and use this period also to
revise areas of the law that will impact the presidential election, as
well as to restore credibility to key institutions such as the IEC and
the Electoral Complaints Commission (ECC).
4. Clarify the roles of the Supreme Court
and the ICSIC both in law and in practice by August 2013; adopt
amendments to the 2008 law on the mandate and functions of the ICSIC
that further outline its role in interpreting the constitution; work
with the president to strike a swift compromise on candidates to replace
judges with expired and expiring terms on the Supreme Court by August
2013, so that it has a full complement for the crucial year of 2014.
To the international community, in
particular the U.S., European Union (EU), UK, International Security
Assistance Force (ISAF) and other main donor institutions:
5. Maintain aid commitments in support of
the election, contingent on the Afghan government meeting key benchmarks
for reform; consider, if benchmarks are not met, withholding related
funding so as to spur the Afghan government to action; and coordinate
better, including with the UN Assistance Mission to Afghanistan (UNAMA),
their support for elections.
6. Begin contingency planning immediately
to ensure adequate security for the necessary number of voting centres,
as well as for the possibility that elections are postponed and/or a
state of emergency is declared before or during the 2014 presidential
campaign; U.S. military leaders in ISAF and political leaders in
Washington should be especially wary of the temptation to allow the
military drawdown to dictate the pace and shape of the presidential,
provincial council and parliamentary polls.
