Author: Andy Campbell
In late 2001 the Taliban regime was removed from controlling much of Afghanistan by a US-led international coalition. Since that time, much has changed. The Transitional Islamic State of Afghanistan created via the Bonn agreement of 2001 is now the Islamic Republic of Afghanistan, and the US-led Operation Enduring Freedom gave way to a NATO-led International Security Assistance Force (ISAF), which was initially restricted to Kabul. Armed factions, a serious destabilizing factor, were for the most part disarmed and demobilized, and many warlords renounced violence. It was hoped that electoral and political gains made would be built upon, that lessons learned would be acted upon and that weaknesses identified would be addressed. It was also hoped that the Taliban would be defeated, and that the remaining warlords would be forced to accept the status quo and relinquish the past. The reality in Afghanistan, however, is far from ideal.
In 2012 Afghanistan still had the Taliban (in various factions) and other insurgent groups seeking to reassert their control through wanton acts of violence, for the most part directed against Afghans. ISAF combat troops were drawing down during 2014. Localized warlords, although disarmed, now exist in the guise of provincial governors, presidentially appointed ministers and elected officials to the National Assembly. The Joint Election Management Body (JEMB) was closed down and the Independent Electoral Commission (IEC) took over but suffered from extreme executive office interference and the embarrassment of running possibly the worst electoral event in living memory in 2009. It involved industrial-scale fraud, the active collusion of senior EMB staff, and an incredibly strained relationship with the international community that funded it and the United Nations Development Programme (UNDP) that provided advisors to support it. It remains to be seen what the next ten years will hold in terms of the EMB’s ability to run credible electoral events.
Historical Background and Recent History
Since mid-2004 Afghans have participated in a series of elections: presidential (2004); Wolesi Jirga (lower house of the National Assembly) and Provincial Council (for 34 provinces) in 2005; Presidential and Provincial Council (2009) and Wolesi Jirga in 2010. In addition, as a result of the Provincial Council events, two-thirds of the upper house of the National Assembly (the Meshrano Jirga) is selected by each of 34 Provincial Councils, and one-third is appointed by the president. In 2004 out-of-country voting (OCV) for Afghan refugees was held in Pakistan and Afghanistan for the presidential election, run by the International Organization for Migration (IOM); this was not repeated for any subsequent events.
The timeframe for elections is based on various sections of the Afghan constitution, which has given the EMB an extremely unrealistic and unworkable election calendar with elections scheduled almost every year. When combined with other factors, including climate and the ongoing insurgency, the election calendar has hindered the full maturity of an Afghan EMB.
The development of the Afghan EMB has also been hampered by external influences for most of its existence, in particular the executive, elements from within the UN system and strong personalities in regional centres around the country. To make matters worse, the evolution of the Afghan EMB was not a smooth, well-planned process; achieving the outcome of an elected president and an elected National Assembly with reduced influence from illegally armed groups and warlords were the primary drivers for the international community and the Afghan elite, rather than the long-term viability of an EMB. As a result, the foundation of the EMB has been messy.
The evolution of the Afghan EMB has been an unnecessarily complex process. From 2003 to 2006 there were five different phases. The first entity (2002) was purely a UN construct housed in the United Nations Assistance Mission in Afghanistan (UNAMA) offices. In mid-2003 an interim hybrid Afghan and international entity (the JEMB) was formed to supervise the existing UNAMA function via a decree from the interim president. In early 2004 the UNAMA function was crafted into an Afghan-led secretariat that answered to the JEMB. This entity ran the 2004 presidential event. There was no provision in the 2004 election law to appeal decisions, hence in 2004 the office of the Special Representative of the Secretary-General (SRSG) and the United Nations Electoral Assistance Division (UNEAD) hastily convened the Impartial Panel of Election Experts with investigators drawn from the IOM-run OCV programme in Iran and Pakistan. This panel was created in response to allegations of interference as well as issues surrounding the use of indelible ink.
In early 2005 most of the original JEMB commissioners were replaced, and the lead implementing agency was shifted to the UN Office of Project Services (UNOPS). A heavy international-led presence managed the 2005 events. At its height, over 500 internationals were assigned to support the process, although many were engaged for only a few months. In May 2005, the 2004 Electoral Law was replaced with a new presidential decree that called for the creation of an Electoral Complaints Commission (ECC) with five commissioners (three international, appointed by the SRSG, and two Afghan: one appointed by the Supreme Court and one from the Afghan Independent Human Rights Commission). The Media Commission reported to the JEMB as per article 51 of the amended law (now article 60 of the 2010 law).
In late 2005, after the National Assembly met for the first time, the JEMB was dissolved and the Afghan IEC was formally established. In 2006 the UNDP established the Enhancing Electoral and Legal Capacity for Tomorrow (ELECT) programme to provide advisors to the IEC. There was a delay in commencing the ELECT programme, and delays in funding the new IEC resulted in a number of quality staff leaving. This delay was in part because of a USD 11 million shortfall due to the increased cost of the 2005 elections, as effectively UNDP owed UNOPS the money for running the 2005 event.
The IEC developed a strategic plan for 2006–09 that was not overly ambitious, but it was never fully adopted. The key task of voter registration reform was again deemed too expensive, both economically and politically. Discussions on electoral reform and related issues, such as a nationwide census that would have enabled boundary delimitation, a critical task for the yet-to-be-held district council elections, did not occur. The IEC continued planning for the 2009 presidential election, but did not have the money or the capacity to run the event according to the timetable. Another voter registration exercise was conducted from 2008. Support continued from UNDP- ELECT when staff were eventually recruited. Recruitment of international advisors has continued to be a weakness, primarily through the cumbersome UNDP recruitment system, even though most were on the UNEAD roster of experts. The event was delayed and then came the fiasco of an election in which almost one in four ballots was invalidated and five principal electoral officers (PEOs) were eventually dismissed. In 2010 changes came with a new election law, as well as a new chairman and new chief electoral officer (CEO).
Legislative Framework
The legal basis for the establishment of the IEC is the constitution and the Electoral Law. Article 33 states that ‘citizens shall have the right to elect and be elected’, and article 156 states that the ‘Independent Election Commission shall be established to administer as well as supervise every kind of election’. There have been three electoral laws, all of which have been presidential decrees: 2004, 2005 (which introduced the ECC provisions) and 2010. There are also a number of other decrees and adjunct laws, such as the Political Parties Law of 2009, that affect the IEC.
Presidential Decree No. 23 of January 2005 established the structure and workings of the IEC, and limited the role of the JEMB until the establishment of the National Assembly (article 10). A previous presidential decree from 2003 established the Interim IEC. The original Electoral Law of 2004 contained article 61 (Elections during the Transitional Period), which referred to this as ‘the end of the transitional period’. Article 66 of the 2010 Election Law gives the IEC the power to issue binding regulations; to date, it has issued regulations on a wide range of topics. Article 50 specifies that the IEC will determine the rights and obligations of the agents, observers and media.
As mentioned above, the Media Commission, which reports to the IEC, was created in the Election Law (article 51 of the amended law, now article 60 of the 2010 law). The ECC received its mandate from article 61 of the Election Law. The structural and legal arrangements of the ECC are awkward and subject to extreme interference, as witnessed in 2009 and 2010. The ECC is a temporary body, which presents significant institutional memory issues.
The IEC is not responsible for political party registration; this is handled by the Ministry of Justice. Nor is it responsible for boundary delimitation.
Electoral Reform
Electoral reform is a staple discussion in Afghanistan; it is much talked about and seldom implemented. Fundamentally, Afghanistan has not progressed from an electoral base that is founded not in debated law, but rather in successive presidential decrees. The 2010 Election Law was issued under article 79 from the president; it allows for legislative decrees in times of ‘immediate need’. This process bypassed section 109, which prohibits changes to the law ‘during the last year of the legislative term’. Because the Wolesi Jirga delayed the vote even though the chamber voted the law down in a ‘sea of red cards’, the Meshrano Jirga refused to debate it on administrative grounds.
The new law in 2010 enforced the president’s right to appoint all members of the ECC and made what some described as ‘mere administrative changes’. For example, the 2010 law removed article 9 (Commitment to Impartiality and Confidentiality) for electoral officials, a section that was lost on many commentators in Kabul, both Afghan and international. Another change was the replacement of the ‘majority of valid votes’ with the broad notion of a ‘majority of votes over 50 percent’. These ‘mere administrative changes’ are subtle yet profound, and have a significant impact on the fundamental principles of an EMB as well as the rule of law.
The secretariat staff of the JEMB was involved in drafting the amended 2005 Election Law, and the IEC staff have provided support to this mechanism, including the 2010 decree. In addition, in 2012 the IEC produced its own complete revision of the Election Law, which it sent to the Ministry of Justice for review. Although the stakeholder engagement was minimal, this is the first time the IEC has successfully embarked on such a task. Various entities, however, mostly domestic, are seeking to steer the electoral reform debate in their own direction. Within the National Assembly, one of the registered ‘parliamentary’ groups is working on electoral reform, and US-funded entities are seeking to create a space for Afghans to participate in the process. A large multiparty coalition is also pursuing electoral reform, as is at least one diplomatic mission. All these groups have a vested interest in electoral reform in Afghanistan, yet voters are seldom engaged in the process.
Institutional and Operational Issues
Like the JEMB in 2004 and 2005, the IEC has a secretariat to perform electoral operations. For the 2004 election, the secretariat was managed by an Afghan; in 2005 the SRSG appointed an international CEO with an Afghan counterpart who in 2006 became the first Afghan CEO and later ran the 2009 elections. Nearly all the Afghan PEOs of 2004–05 were appointed as PEOs in 2006 within the IEC, ensuring a continuity of knowledge and experience. Ironically, for the most part UNDP-ELECT did not rehire as advisors the international staff from 2004–05 that had a wealth of experience to offer. In early 2010 the CEO was replaced with a former JEMB/IEC staff member who inherited a dysfunctional IEC. The chairman was also replaced, but most commissioners remained. The CEO supervised the 2010 election and resigned in mid- 2012 to return to development work.
There are three primary institutional and operational issues that affect the EMB: intimidation (in relation to independence), fraud and a declining turnout. The institutional issues of intimidation and fraud have plagued the EMB since its creation. The notion of independence is not uniformly entrenched or respected, and this issue continues to impede the functioning of the IEC. Although the international staff from 2004–05 and UNDP-ELECT have generally been very experienced electoral managers in their own right, more than a few were unable to adequately impart capacity or provide guidance on independence and withstanding interference.
There are, unfortunately, many examples of interference across all events. In 2005, extreme pressure was placed on the JEMB’s staff to find a way to remove some Wolesi Jirga and Provincial Council candidates in a certain province; pressure came from both the president’s office and that of the SRSG. In 2009, there was frequent direct ‘contact’ from the president’s office to the IEC over the anticipated result of the presidential election, and a number of PEOs interfered with the results in their provinces after direct and unprecedented pressure from strong local entities. In the 2010 election, the Ministry of Defence announced its own list of polling stations that it would protect, in direct contrast to the (shorter) official IEC list; the implication was that these additional stations were likely to experience fraud. As has been stated by seasoned electoral experts, the possible responses to this type of interference are to ‘bend, break or flee’.
UNDP-ELECT assigned a chief technical advisor (CTA) to support the CEO and to manage the ELECT programme; thus far there have been five CTAs. On more than one occasion, the CTA has clearly operated as a member of the UN first and foremost and reported to the SRSG. This partly explains why the relationship between the CEO and CTA deteriorated significantly in the lead up to the 2009 election.
The third issue that affects the EMB, declining voter turnout (but increasing voter registration), is a growing concern. Voter turnout, expressed by the number of valid ballot papers that are presented on election day, has decreased from 8.0 million in 2004 to 6.4 million in 2005, 4.2 million in 2009 and 4.0 million in 2010. In the same period, due to reliance on a fundamentally flawed voter registration system, the number of registered voters increased from 12.4 million in 2004 to over 17.5 million in 2010. The primary reason for this was the decision to have a voter registration ‘top up’ between 2008 and 2010, rather a complete reregistration, which would have been far better if the systems were in place to capture the data.
The most often-cited reason for the decline is the deteriorating security situation, which explains only part of it. Another important reason is that voters do not perceive the electoral process as a means to improve their lives. The process, the EMB and democracy are viewed with growing distrust and scepticism.
Acquiring and Managing New Technologies
Afghanistan, although a fragile state, is able to use new media and technologies; mobile telephones are widespread and Internet usage is growing. Like much of Africa, it has no need to use landline technology before jumping to the next level. Unfortunately, this has not been embraced by the IEC due to cost restrictions, both initial and recurring. Climate constraints also hamper the IEC’s ability to use new technologies.
The most glaring gap in terms of using new technology is the voter registration database, or lack thereof. The voter registration method as mentioned above is flawed. It is effectively a handwritten piece of paper with the person’s province or district (but not their address); it may or may not have a photo (women have the right to decline having their photograph taken).
As early as 2006, it was planned that the IEC, jointly with the Ministry of Interior, was to establish a joint civil voter registry (CVR) to provide a national identification system within a comprehensive national database. The project’s pilot phase involved the use and testing of two biometric technologies: facial recognition and iris recognition as search tools for verification and identification of multiple registrations in the database. The UN High Commissioner for Refugees has used iris technology for refugee repatriation, but the IEC is not in a position to use such technology. Facial recognition proved too costly in the pilot and was dropped. Since 2007 the Ministry of the Interior has indicated that it wanted to undertake civil registration autonomously from voter registration, although to date this has not proved effective either. A modified voter registration plan was considered again, and under pressure from UNDP-ELECT, new voter registration cards were issued without effective safeguarding against multiple or proxy registration.
Powers and Functions
The IEC has some, but not all, of the basic attributes of an impartial and independent EMB. It is responsible for voter registration and the conduct of elections as well as the handling of nominations, polling, counting and announcing the results. The IEC is not responsible for registering political parties; this task is handled by the Ministry of Justice. The EMB has no capacity to undertake boundary delimitation, which is an ongoing issue for organizing the district council elections.
The IEC is also a key actor in vetting candidates for links to armed groups. Yet the ECC is empowered in the Electoral Law to be the final arbiter regarding candidates. This part of the system has been the subject of much discussion and executive interference. The ECC performed its functions moderately well in 2005, as dictated by the Election Law, although it was established very late. The ECC structure in 2009 was the same as 2005, with three internationals and two Afghans. But it is a temporary body with no institutional memory. During the 2009 election it was seen as a last bastion of independence due to the very questionable actions of the IEC executive, although it lost a great deal of credibility when it sought to use a sampling methodology to remove tampered ballot papers. It used this method on the advice of a few and as the result of the IEC refusal to recount 10 per cent of ballot papers. In almost a reversal of fortunes, the IEC of 2010 was more independent, whereas the ECC was seen as operating at the behest of the executive, especially in its very questionable decision not to be the final arbiter of complaints, as required by the Electoral Law. The role of the ECC will continue to be an Achilles heel in electoral management in Afghanistan until the IEC is capable of handling complaints.
Financing
The IEC is a permanent institution, and its daily activities and electoral events are technically funded from the national budget. Senior staff are employed under the auspices of the Afghan Civil Service Commission. The IEC prepares its own annual budget as well as the electoral budget, which are submitted through the Ministry of Finance for approval by the National Assembly. Donors then agree to contribute what they can to the process, in particular voter registration. Herein lies the problem.
Consistency in funding the EMB has hindered its development, and directly affects its long-term sustainability. As it stands, the UNDP-ELECT II (the new UNDP programme that commenced in 2012), is the preferred basket for donors to contribute to, both for UN support to the IEC and for its ongoing daily costs. The Afghan state lacks the fiscal capacity to sustain the IEC and undertake significant programmes such as voter registration and elections, and has relied heavily on international donor support, which has been inconsistent in application and delivery.
The costs associated with the four cycles of elections held thus far are not unexpected, but their frequency has resulted in calls to adjust the electoral calendar, which would require constitutional amendment. The minimum estimated costs for the four election years is over USD 758 million: USD 105 million for 2004 (the original budget was USD 130 million), USD 168 million for 2005 (the original budget was USD 159 million), and over USD 485 million for 2009 and 2010. These amounts do not include the considerable contribution from ISAF for the distribution and retrieval of sensitive material and force protection. After its departure, these costs will have to be borne by the Afghan government.
Accountability
As with many things in Afghanistan, the fundamentals are still a work in progress. The president appoints and can dismiss the chairman, deputy and the other members of the commission, as well as the CEO. In the past these appointments have been subject to executive whim. Although the National Assembly has requested a role in issuing a vote of confidence and a stamp of approval for these roles, to date this has not occurred. The EMB sits in legal limbo within the government machinery. The 2005 Presidential Decree No. 23 on the Structure and Working Procedure of the IEC is still current. Presidential Decree No. 21, also from 2005, appointed the members of the first IEC by name, but created no enduring appointment mechanism. The president has since followed this precedent and named commissioners or the CEO unilaterally.
One former CEO was appointed three days after being asked to submit his resume to the presidential palace for consideration.
Decree 21 refers to article 156 in the constitution, which speaks of the establishment of the IEC but not who it answers to. Article 2 of the decree states that the IEC shall be independent in its duties, but again does not stipulate who it answers to. As a matter of governance, all government departments, whether they are independent bodies or not, should give an account of their work. The IEC’s only reporting requirement is through the annual accountability week reporting in March, in which all state agencies report on their achievements through the media.
Accountability issues also extend to the continued practice of the executive rewarding electoral staff for what could be perceived as ‘favourable outcomes’. Article 6 of decree 21 clearly prohibits members of the IEC ‘for a period of one year (to) be appointed to top official positions’. This ban has been violated on a number of occasions: a previous CEO (2006–10) was put forward as a minister in 2010 by the president well within the 12-month moratorium; an IEC chairman (2007–10) was appointed to the post of chairman of the High Office for Oversight and Anti- Corruption in 2010 shortly after resigning; and the original director of the JEMB secretariat (2004) was appointed as a cabinet secretary in early 2005.
Professionalism
Throughout the various forms of the EMB in Afghanistan, capacity building has been inconsistently applied. In 2003–04 the notion of counterparts through pairing was used widely. In 2005, while every international role had an Afghan counterpart and capacity building was seen as a primary aim, it was not uniformly implemented. This unfortunately is not unique to Afghanistan. Both the JEMB and the IEC extensively used the Building Resources in Democracy, Governance and Elections (BRIDGE) methodology and this has had a positive outcome, although the BRIDGE training was frequently an internal affair; little cross-pollination from outside sources has been achieved. Over time, there have been some modest steps to professionalize electoral officials. There is now an Afghan Association of Electoral Officials, which was founded by the deputy CEO of the IEC. It is also open to non-IEC staff, and is an associate institutional member of the Association of European Election Officials. Frequent study tours for election officials are conducted to examine how other countries run their EMB and events.
Training and membership in networks, however, can only go so far if interference permeates at all levels. The unfortunate reality in Afghanistan is that very experienced electoral staff succumbed to executive and regional power broker interference. As well as the eventual removal of the chairman and CEO of the IEC, the aftermath of the 2009 elections saw five PEOs, all with many years of experience, dismissed; in addition, several hundred district field coordinators and over 6,000 polling day staff were black-listed from working for the IEC again. While the fraud was extreme in 2009, it was also fairly significant in 2005, but due to political pressure to have a successful election it was not adequately investigated. The 2010 election was better, but primarily because the IEC was quick to invalidate over 1.3 million ballot papers and the ECC chose not to deal with many matters in a robust manner as expected.
Relations with other Entities
The EMB has had a mixed relationship with other domestic and international entities. The diplomatic community has maintained a relationship with the senior executive of the IEC, which was demonstrated by the challenges of the 2009 election and the replacement of the chairman and CEO in 2010. This is symptomatic of the political space in which the EMB operates; elections are, after all, essentially a political activity — and none more so than Afghanistan.
The IEC’s primary relationship is with the UNDP via its ELECT programme; significant support sometimes comes from other entities such as the International Foundation for Electoral Systems (IFES) via its Support to the Electoral Process in Afghanistan (STEP) role (which has now ended). The relationship between UNDP-ELECT and the IEC has been incredibly acrimonious at times, in part due to the personalities involved, but also because of deeply conflicting perceptions of programme implementation. The low point in the relationship coincided with the 2009 elections and the murder of UNDP- ELECT staff in Kabul, but improved considerably with a new CEO for the IEC and a new CTA of UNDP-ELECT from 2010. In 2011 the CEO advised IFES that they no longer required any more advisors.
Other internationally funded organizations have continued to support the IEC, such as the Asia Foundation (with its role in implementing the BRIDGE course); party institutes, primarily the National Democratic Institute in training clients for the IEC; and political parties, candidates and their agents. However, this ancillary support is likewise donor driven, and the follow-up impact when these programmes have been discontinued is significant. Domestically, the IEC and the main electoral monitoring organization Free and Fair Election Forum of Afghanistan (FEFA) have had a challenging relationship; the latter has sometimes reported on issues without prior consultation with the IEC. Likewise, the IEC has reacted to such reporting in a manner not entirely conducive to the principles of free speech and transparency.
Sustainability
There has been ongoing debate about the viability of the IEC, as various international actors have dithered at times over funding arrangements. This has had a negative impact, as was seen in early 2006. Regardless, the IEC is a permanent institution, and it has developed functioning strategic plans, budgets and contingency planning — all of which demonstrate an internal administrative maturity. In 2012 the IEC published its latest strategic plan.
There have been various attempts at reforming the EMB’s operational model. The IEC is required to have a presence in all 34 provinces in addition to Kabul, and eight regional offices. In the JEMB phase, the IEC operated out of UN offices; in 2006 a purpose-built headquarters was established in Kabul. Not all of the 34 province offices are in stand-alone facilities yet, and some still rely on leveraging off government facilities. The total number of Afghan staff of the IEC when not in an election year is around 405, although this number increases significantly in an election year. The number of temporary staff has decreased from over 120,000 in previous events to 86,000 as polling
station staff for the 2010 event. The current budget (2012–14), which excludes voter registration, is approximately USD 60 million — which includes both UNDP-ELECT and IEC staff.
Opportunities and Constraints
The challenge of supporting a viable and independent EMB needs to be assessed in the context of what has not worked well in the past. The notion of electoral reform is part of the answer — in particular, having a law passed by legislators, which ideally was drafted by them in consultation with the EMB and key stakeholders. The voting system is a moot point. A commitment from the donor community to providing core funding between electoral years for the EMB would ensure continuity. Significant and hard decisions on options to create a viable voter registration database through a voter registration exercise or a civil registration exercise led by the Interior Ministry with EMB support is critical. Unfortunately, these options have been explored more than once, yet a declining voter turnout is a significant concern that should be addressed. Senior members must be appointed through an impartial and transparent process that is vetted by the National Assembly; it is an opportunity to renew the people’s trust in democratic institutions. All members of the EMB must be strictly apolitical; a partisan EMB will not work in Afghanistan. It is likely that issues such as gender balance and minority engagement, including the disabled, will take a back seat until these core matters are resolved.
