LOWER HOUSE QUESTIONS MANDATE AND LEADERSHIP OF

C O N F I D E N T I A L SECTION 01 OF 03 KABUL 003237 SIPDIS SIPDIS DEPT FOR SCA/FO DAS GASTRIGHT, SCA/A STATE PASS TO USAID FOR AID/ANE, AID/DCHA/DG NSC FOR JWOOD OSD FOR SHIVERS CENTCOM FOR CG CFC-A. CG CJTF-82 POLAD E.O. 12958: DECL: 07/10/2017 TAGS: PGOV PREL PTER PHUM AF SUBJECT: LOWER HOUSE QUESTIONS MANDATE AND LEADERSHIP OF HUMAN RIGHTS COMMISSION REF: A. KABUL 1605 ¶B. KABUL 1246 ¶C. KABUL 834 ¶D. KABUL 466 ¶E. KABUL 324 Classified By: Ambassador William B. Wood for reasons 1.4 (B) and (D). ¶1. (C) Summary: The Lower House of Parliament's September 1 discussion of the Structure of Government Law included heated debates over the mandate and leadership of the Afghanistan Independent Human Rights Commission (AIHRC). Following scathing criticism of the AIHRC, the Lower House voted to require a vote of confidence on the leadership of Afghanistan's constitutionally-mandated "independent commissions" (affecting not only the AIHRC, but also the Independent Elections Commission and the Independent Administrative and Civil Service Reform Commission). Previously, the leadership of these commissions have only required a presidential appointment, but the balance-of-powers battle between Parliament and the executive -- triggered by the no-confidence vote against Foreign Minister Spanta (reftel A) -- has bled into this and other issues. The AIHRC seeks international community support to pressure Karzai to protect the independence of the commission, without which it cannot adequately monitor government compliance with the Universal Declaration on Human Rights. The Embassy will weigh in with both Parliament and Karzai about maintaining autonomy for the commissions affected by this ruling, which could implicate not only the monitoring of human rights but possibly the fate of Afghanistan's upcoming parliamentary and presidential elections and the direction of civil service reform. End summary. ¶2. (C) Parliament's recent decision to assume broader oversight authority over executive decisions reflects its efforts to use ambiguous language in the Constitution to claim authority prescribed, by law, to the executive. Speaker Qanooni's continued insistence that Parliament's no-confidence vote on Foreign Minister Spanta was binding and -- despite a contrary ruling by the Supreme Court -- constitutes Spanta's dismissal is just the most public and dramatic chapter in this debate. Karzai continues to defend his prerogatives as the Wolesi Jirga takes every opportunity to decry the executive for not respecting its edicts. ¶3. (SBU) More than just an attempt to carve away power from the executive, Parliament's recent attack on the Afghanistan Independent Human Rights Commission (AIHRC) is also part of an ongoing effort to protect Afghanistan's former mujahideen from accountability. Viewed as national heroes by some and the nation's most egregious human rights violators by others, the mujahideen leaders make up a powerful contingent in Parliament. They use this power as a base for weakening the AIHRC in order to protect themselves from political marginalization and possible prosecution. Parliament's two-day debate on the fate of the human rights commission was sparked by MP Abdul Rasul Sayaf and supported by a number of MPs who have diverse ethnic and regional ties. Sayaf claimed he did not want to abolish the AIHRC but said he was "strongly against its leadership," referring to Dr. Sima Samar whom he accuses of having a vendetta against Afghanistan's former mujahideen. Sayaf suggested that seats for the AIHRC's nine commissioners (currently held by former lawyers and human rights activists) should instead include religious scholars who are well-versed in Shari'a law and who are ethnically impartial. MP Amanullah Paiman (Tajik from Badakhshan province) echoed the call for AIHRC leadership to be impartial and implied that current Chairwoman Dr. Samar could not be impartial KABUL 00003237 002 OF 003 due to her notoriety as a prominent Hazara. Sayaf also proposed that the AIHRC's budget, structure and activities be reviewed by the Parliament and that the chairperson be held to a vote of confidence by Parliament. ¶4. (SBU) At least two Hazara MPs also spoke out against the AIHRC, decrying it as a commission that works on behalf of foreigners and criticizing its safe house programs for women as a threat to Afghan family values. MP Alam Gul Khan, who represents the Kuchi community, went so far as to call the AIHRC a "spy and devil network serving the foreigners and creating conspiracy theories." Even moderate MPs criticized the AIHRC for not working in accordance with Shari'a Law and for hindering the punishment of criminals - a reference to the AIHRC's opposition to the death penalty. Only one moderate MP, Ustaad Mohammad Akbari (Hazara from Bamyan),defended the AIHRC as working in accordance with Islam. ¶5. (C) Most AIHRC detractors in the Lower House have connections to powerful ex-mujahideen such as Sayaf and Burhanuddin Rabbani. Sayaf and Dr. Sima Samar have butted heads on a number of occasions, including their 2005 dispute over land given by the IROA for the AIHRC's new headquarters in Kabul. (Sayaf contested that the land was his personal property.) In late 2006, public debates in Parliament and media channels over transitional justice further heightened tensions between mujahideen leaders and the AIHRC. Based on rumors that mujahideen leaders planned to protest outside its compound, the AIHRC evacuated staff and closed its offices for two days in late December 2006. (Post quietly weighed in with Sayaf, and the protest did not occur.) The AIHRC later began to hear murmurings of a plan to call for its disbandment in Parliament after it protested the controversial Amnesty Bill passed by the Lower House in January. The Amnesty Bill (ref B,C,D,E) was the brainchild of former mujahideen leaders in Parliament who sought to grant blanket immunity to anyone (most notably themselves) who had been involved in Afghanistan's two-and-a-half decades of conflict. Rather than an "independent" commission working on behalf of human rights, mujahideen leaders see the AIHRC as a front for a political movement - backed by members of the international community - that seeks to marginalize mujahideen leaders' power. ¶6. (C) The AIHRC maintains that mujahideen leaders are attempting to discredit the AIHRC and human rights principals as "against Islam" as part of a self- interested move to silence calls for transitional justice. Dr. Samar asserts that the decision to hold AIHRC leadership to a vote of confidence by Parliament contravenes Article 58 of the Afghan Constitution, which mandates the existence of the AIHRC. Samar asserts that the commission must be protected from Parliament's interference in order to execute its mandate to monitor impartially the government's compliance with its constitutional requirement to uphold the Universal Declaration of Human Rights. ¶7. (C) The AIHRC anticipates that the Upper House will concur with the Lower House's decision to require a vote of confidence on AIHRC leadership. The AIHRC has called for President Karzai to issue a letter to Parliament outlining that the AIHRC is constitutionally mandated and that only the President has authority to nominate its leadership. The commission seeks international community help to pressure Karzai to amend the vote of confidence requirement before the Structure of Government Law receives Karzai's final signature. EU Special Representative Vendrell raised the issue with Karzai during a September 3 meeting in which Karzai reportedly stated that he would not let the AIHRC be dissolved. KABUL 00003237 003 OF 003 ¶8. (C) Comment: AIHRC assertions that Parliament's interference in the make-up and mandate of the commission would be "unconstitutional" are not entirely correct. Article 58 of the Afghan constitution mandates the establishment of the AIHRC "for the purpose of monitoring the observation of human rights in Afghanistan," but it also stipulates that "the structure and functions of the commission shall be regulated by law." It is not the Constitution, but a separate law on the "Structures, Duties and Mandate of the AIHRC" (signed by Presidential Decree in May 2005) which establishes the AIHRC "as an independent body" (Article 2). Other articles in that law stipulate that the commissioners and chairperson are appointed solely by the President (Article 7) and mandate the AIHRC to "monitor the performance of those administrative systems, legal and judicial institutions...that affect human rights" (Article 21). ¶9. (C) Comment continued: While Parliament does not have the constitutional authority to abolish the AIHRC, the Parliament is obligated to review and approve all laws passed by Presidential decree, including the law governing the structure and mandate of all independent commissions. This gives Parliament a legal basis to exercise influence over the commissions' composition. Although Dr. Samar asserts that introducing Parliamentary oversight would interfere with the commission's independence, the fact that the President currently has sole authority to appoint AIHRC commissioners also prevents the AIHRC from acting without any regard for the government. Even so, the AIHRC's current relationship with the Palace allows it to be both critical of the government and still maintain an advisory relationship with Karzai. Given mujahideen leaders' fear of AIHRC calls for transitional justice, a Parliamentary review at this stage would surely weaken the AIHRC's ability to serve as a watch-dog over the government. Parliament's scrutiny of the AIHRC is not wholly negative, as it presents an opportunity to weigh options that would ensure that the AIHRC is neither influenced solely by the executive nor the Parliament. The Embassy will weigh in with key members of Parliament and Karzai about options that will protect the autonomy of the AIHRC and other independent commissions affected by the Lower House's recent ruling. End comment. WOOD