ELECTION CONTINGENCIES: DEATH OF A CANDIDATE AFTER

UNCLAS KABUL 002428 DEPARTMENT FOR S/SRAP, SCA/FO, SCA/A, EUR/RPM STATE PASS TO AID FOR ASIA/SCAA USFOR-A FOR POLAD SENSITIVE SIPDIS E.O. 12958: N/A TAGS: KDEM PGOV PREL AF SUBJECT: ELECTION CONTINGENCIES: DEATH OF A CANDIDATE AFTER ELECTION DAY ¶1. (SBU) Summary. A strict interpretation of the Afghan constitution provides that an election must be re-run if any candidate is killed after election day and before results are certified. To date, the IEC has not announced a policy of what it would do in this eventuality. End Summary. ¶2. (SBU) Afghan laws pertaining to death of a presidential candidate are vaguely drafted, but are clearly intended to reduce the political effect of assassination and to deter or narrow its incidence, according to legal advisors at UNAMA and IFES. ¶3. (SBU) Article 61 of the Constitution -- repeated almost verbatim in the Electoral Law, Chapter V, Article 18 - reads: "In case of death of one of the candidates during the first or second round, after the elections or prior to the announcement of the results of elections, new elections shall be held in accordance with the provisions of law." For this year's Presidential elections, that would mean the period from opening of polls on August 20 to the certification of results on September 17 -- and longer if there were a second round. With 34 candidates at large and a forecast for more electoral violence, a strict and literal interpretation of Article 61 of the Constitution risks providing incentive for assassination. ¶4. (SBU) Chapter VIII, Article 37 of the 2005 Electoral Law ("Death and Withdrawal of Candidates") is very confusing. The Chapter appears to apply to all elections but the Article seems most relevant to Provincial Council candidates. It states, "If a candidate dies between the close of voting and before the certification of the election results, the votes cast in his or her favor shall be recorded. If it is determined that the deceased candidate had been elected, then his or her seat shall be filled by the next most voted person from the same gender." It seems clear how this chapter of law would apply to a Provincial Council candidate's death but it seems unclear how it was intended to guide process in the event of a Presidential candidate's death, particularly in light of Chapter V, Article 18. ¶5. (SBU) The IEC has the authority to promulgate regulations to implement or interpret the electoral law. Absence of an official policy interpretation on death of a presidential candidate could force an ad-hoc decision in an emergency. Such a decision may be controversial if it is perceived as politically motivated. For these reasons, UNAMA, UNDP-Elect, and IFES advisors to the Independent Electoral Commission had all urged the Commission to decide and announce its policy on death of a Presidential candidate along the following lines: that there would be no re-run of the election unless the Presidential candidate who dies is a winning candidate of round one or round two, or one of the two candidates in a second round. At this juncture - with less than 12 hours to go before polls open -- IEC has not made such an announcement. EIKENBERRY