ELECTIONS CRISIS ON THE BOIL

S E C R E T SECTION 01 OF 02 KABUL 000415 SIPDIS E.O. 12958: DECL: 02/25/2019 TAGS: PGOV AF SUBJECT: ELECTIONS CRISIS ON THE BOIL REF: HOLBROOKE-DELL TELCON FEBRUARY 25 2009 Classified By: CDA Ambassador Christopher W. Dell for reasons 1.4 (b) and (d). ¶1. (C) Per ref instructions, I pressed the leaders of Afghanistan's three branches of government to reconfirm their commitment to August elections, proposing that President Karzai's term of office formally end on May 22, but that he and most of his government remain in caretaker status through elections. (Detailed readouts of meetings with Vice Presidents Massoud and Khalili, Speakers of the Upper and Lower Houses and the Chief Justice will be provided septels.) ¶2. (C) I met first with Karzai, joined by COMISAF, General McKiernan. Karzai said he had completed his month long consultations on the elections issue yesterday. He said that while he found a range of opinions, there was a clear majority in favor of respecting constitutional interpretation that elections must be held before May 22 when his term ends. Karzai spent much of the meeting describing the fear prevalent in Kabul that any vacuum of authority would plunge the country into a deep crisis. On that basis he vehemently rejected the idea that after May 22 he lead a caretaker government. ¶3. (C) Karzai said he felt he had no choice but to call on the Independent Elections Commission to reconsider the August date and try to find a date that respects the May 22 term limit. The idea, according to Karzai, is that after a period of time the IEC would announce that it could not properly organize elections before May 22, which would trigger one of two actions under the constitution. Either Karzai could call for a Loya Jirga or declare a state of emergency. In either case the goal would be to get the election date moved to August (or perhaps even later Karzai hinted in our second meeting of the day). ¶4. (C) When I executed my instructions to note that failure to honor his recent commitment to Ambassador Holbrooke to respect an August election date would be tantamount to repudiating the President, Karzai began mildly by saying that he personally also preferred August elections, but in view of his responsibilities to maintain the legitimacy of the state and order in the country, he was not prepared to accept limitations on presidential authority. As he gathered steam and emotion, Karzai complained about broken promises of the past, empty words, and his readiness to sacrifice himself for the good of Afghanistan. He also made dark allusions to "foreign powers" in the region and elsewhere who would use such a situation to foment disorder, which he believed would quickly spiral out of control. He returned repeatedly to the notion that he was and wanted to be seen as the "legitimate" president of Afghanistan. ¶5. (C) When I asked Karzai whether he was concerned that a failed electoral process would itself de-legitimize the government, the president acknowledged that this was a serious risk, but that he would not let himself be scapegoated by being the one to subvert the constitutional order. This quickly led, however, to a less emotional discussion of Karzai's thinking. In essence, he believes that all options but one have been taken from him by the unwillingness of the Supreme Court to come up with a more "flexible" interpretation of the constitution and the action of Parliament in sending him a letter declaring that after May 22 his presidency would be illegitimate under the constitution. ¶6. (C) In our second meeting of the day Karzai gathered his Minister of Justice, Chief Justice, Head of the IEC and various palace officials, as well as myself. Karzai laid out four possible solutions: 1) The Chief Justice offers an opinion that as the president's terms had begun on December 7, 2004, it should end on December 7, 2009; 2) the Chief Justice finds another legal interpretation within the many articles of the constitution that would allow for another understanding on when elections had to be held; 3) the President immediately calls a Loya Jirga to amend the constitution and move both the election date and the president's term of office to a later date (August or possibly later); 4) the president announces that in conformity with the constitution he believed his term of office would end on May 22 and he therefore requests the IEC to look again at finding an election date within the constitutional time frame. This last would, as noted above, trigger a two-step process: the IEC (backed by the UN and international community) would reply to the president that elections were not feasible before May, and then Karzai would either call a Loya Jirga or declare a state of emergency based on the inability of the state to comply with the constitution. KABUL 00000415 002 OF 002 ¶7. (C) Although Karzai argued with the minister and chief justice for some time, neither was willing to back the first option, and both advised him not to move to an immediate Loya Jirga because it would open him to the political charge of trying to extend his own mandate. Karzai said he would meet privately with the Chief Justice to have one more try at finding an alternative interpretation of the constitution, but he was not optimistic that this could be done. (Comment. The Chief Justice displayed no legal creativity throughout any of this, sticking doggedly to the safe position that there is only one way to read the constitution.) Summing up, the president said he effectively had only one option, to ask the IEC to look for an earlier election date. ¶8. (C) Comment. During the course of my meetings today it became very clear that there is a wide, and at this point unbridgeable, gap between the other leaders and Karzai: the former are happy to agree to August elections, so long as Karzai steps down from office, while the president will only go into elections (whether in May or August) with the full "legitimacy" of his office behind him. All professed that their sole interest was the good of the country, but all found ways to define that which served only their narrow interests. That said, I believe this may only be the start, not the end, of a longer political process. One of Karzai's goals in moving quickly to ask the IEC to move up the elections seems to be to fireproof himself from the accusation that he has perverted the constitution. Whether he then decides to go for a Loya Jirga or declare a state of emergency, he will have to negotiate with his opponents. A Loya Jirga is an inherently political process and the president doesn't have the power to prolong (or, some would argue, even declare) a state of emergency without the consent of at least some others (interpretations vary as to who). In any case, we still have an opportunity to shape an outcome that avoids premature elections or a vacuum of authority. But it is going to be a long slog, requiring a lot of heavy lifting by the international community to help stubborn Afghans to bridge the gap between them. DELL