GIROA APPEARS TO RETREAT ON ELECTORAL REFORM

C O N F I D E N T I A L SECTION 01 OF 02 KABUL 000577

SIPDIS

E.O. 12958: DECL: 02/14/2020
TAGS: PGOV PREL KDEM AF
SUBJECT: GIROA APPEARS TO RETREAT ON ELECTORAL REFORM

Classified By: Ambassador Karl W. Eikenberry; Reasons (b) and (d)


1. (C) Summary: President Karzai's Cabinet of Ministers
has voted to approve an electoral decree that would
"nationalize" the Electoral Complaints Commission (ECC) by
removing the ECC's three international commissioners. If
Karzai signs the decree, it will almost certainly hinder
fraud prevention and detection during the upcoming
Parliamentary elections and make more problematic electoral
reform and democratic progress. Maintaining the mixed
Afghan-international character of the ECC was one of two
recommended preconditions for our assistance to the September
Parliamentary elections. Even if Karzai agrees to minority
international representation in the ECC, the international
community will find weakened its primary mechanism for
checking fraud committed or allowed by the Afghan government.
End Summary.

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Electoral Reform Problematic
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2. (C) On February 13, Afghanistan's Cabinet of Ministers
voted to nationalize the Electoral Complaints Commission
(ECC) by removing the three international commissioners from
the electoral monitoring body and replacing them with
Afghans. The next step is for President Karzai to sign an
electoral decree with this determination. UNAMA SRSG Kai
Eide's inaction on appointing the three international
commissioners, mandated in Afghanistan's 2005 Electoral Law,
likely prompted President Karzai to take advantage of this
vacuum to remove international participation. In a February
11 meeting of ambassadors convened by Eide (septel),he had
been urged to meet first with Karzai if possible, but to go
ahead with the nominations if Karzai did not agree to a
meeting within the next 24 hours, e.g., by the afternoon of
February 12. However, Eide did not meet with Karzai until 13
February, and confronted with the cabinet decision, instead
encouraged the President to accept a formula of minority
foreign participation on the ECC (2 of 5).


3. (SBU) Although we have not confirmed the proposed
composition of the new ECC, according to UNAMA, the head of
the new ECC would be appointed by the Supreme Court.
Parliament's Upper and Lower Houses would each designate a
commissioner, but they could not be members of Parliament.
The President and the Afghan Independent Human Rights
Commission (AIHRC) would designate the remaining two
commissioners.

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ECC Origins, Composition, and Authority
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4. (U) The ECC is not grounded in the Afghan constitution,
but was instead established in accordance with Article 52 of
Afghanistan's 2005 Electoral Law. According to Article 53,
EC membership includes five members: three internationals
appointed by the UN SRSG and two Afghans -- one appointed by
the Supreme Court and the other by the Afghan Independent
Human Rights Commission (AIHRC).


5. (U) While there is no mention in the Electoral Law
regarding the funding of the ECC, it has been funded by the
international donor community through UNDP-Elect. UNDP-Elect
paid USD 11 million to the ECC for the 2009 Presidential and
Provincial Council elections. The total international
contribution to the 2009 elections, including to UNDP-Elect
and bilateral assistance, was USD 488.6 million -- USD 331.2
million for UNDP Elect and additional USD 157.4 million in
bilateral aid. Our contribution was USD 263 million -- over
half of the total international contribution -- of which 120
million was through the UN and 143 million via direct
bilateral assistance. The Afghan government contributed USD
1.5 million to the 2009 elections. Approximately USD 28
million of U.S. contributions to UNDP-Elect (out of a total
of USD 90 million in international donor contributions) have
not been spent. UNDP-Elect's proposed budget for the 2010
Parliamentary elections is USD 160 million.

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Assessment and Remaining Options
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6. (C) Maintaining the mixed Afghan-international character
of the ECC is one of the two recommended preconditions for
international assistance to facilitate the September 18
Parliamentary elections. Even if Karzai agrees to minority
international representation in the ECC, the international
community's primary mechanism for checking fraud tolerated or
orchestrated by the Afghan government will be eroded. It was

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the ECC's international presence that enabled it to demand an
audit of thousands of suspect ballots from the August 2009
presidential election; without ECC authority, the IEC would
likely have swept the massive electoral fraud under the rug
and have declared Karzai the unquestionable victor on the
first round.


7. (SBU) Our remaining leverage is limited. We could
decide to withhold funds from the ECC for the September 18
Parliamentary elections, but given that our and other donor
funds are channeled through a "basket fund" managed by
UNDP-Elect to the ECC, as well as to the Independent
Elections Commission (IEC),we would likely need to withdraw
our overall support for UNDP-Elect. Even if we could
stipulate to UNDP-Elect that we do not want any USG funds to
support the ECC, another donor would likely fund it anyway.
In a February 13 meeting with donors, five countries -- the
UK, Germany, Canada, The Netherlands, and Estonia --
supported our position on the ECC. However, the Japanese
said they would support the Afghan elections regardless of
the ECC's and IEC's composition.


8. (SBU) We could also consider reducing our bilateral
elections assistance, but given the bulk of these funds help
train observers and party poll watchers, strengthen civil
society and political parties, encourage women's
participation in the electoral process, and provide voter
education, withholding funds would only serve to further
erode the electoral process. On the contrary, we should
consider boosting our bilateral assistance and using it to
target opportunities to mitigate fraud. We could also muster
opposition support against the electoral reform decree. When
we met with key Abdullah supporters on February 10 and 11
(septel). they were surprised to learn about the proposed
presidential decree and that it would nationalize the ECC.
They noted that these changes would backslide anti-fraud
measures and allow Karzai to further consolidate his power
over the ECC and the Parliament, which they termed "the only
two state institutions left with some degree of autonomy."


9. (C) The SRSG's inaction on appointing the three
international commissioners probably encouraged President
Karzai to propose the removal of international participation
from the ECC. Ever the agile tactician, Karzai appears to
have timed the decision to nationalize the ECC to coincide
with the joint ISAF-Afghan Marjah military offensive, likely
calculating that we would not wish to challenge him at this
crucial juncture.


10. (C) On the other hand, it is also clear that the ECC
"nationalization" is an issue many Afghans will support, or
at least, because of its resonance with sovereignty, will not
oppose. Abdullah supporters and some in civil society will
publicly oppose the measure, but only the international
community - and in particular the United States - has the
influence to ensure the ECC status quo. The payoff is
probably not worth the cost for several reasons. First, some
ECC missteps in 2009 diminished its own reputation, so the
issue is not black and white. Second, fighting it out to
ensure the status quo gives us more ownership of the
parliamentary elections than we might desire - further
entrenchment in Afghan governance eight plus years into our
mission is not necessarily advisable. Third, Karzai may well
find himself more exposed and responsive to Afghan demands
for real electoral reform if he cannot use the international
community as a scapegoat.


11. (C) Ambassador Eikenberry will meet with President
Karzai to discuss minority foreign presence on the ECC. SRSG
Eide has identified (and suggested to Karzai) a renowned
South African candidate as well as one from a Muslim country.
A formula under which at least one foreign member's vote
could be required for any binding ECC decision would probably
be acceptable. An approach in which the proposed 2010 ECC
configuration was viewed as transitional might be palatable
to most Afghans -- again, with an increasing majority subject
to the appeal of the concept of "nationalization". Beyond
this, a truly independent and capable Independent Elections
Commission will eventually obviate the need for an ECC.


12. (C) Karzai's willingness or unwillingness to consider
our perspectives and serious efforts to build a sustainable
system of representative governance will be a good indication
of his willingness to partner with us in the year ahead.

Eikenberry