NEW AFGHAN ELECTION LAW DECREE: AREAS OF CONCERN

S E C R E T SECTION 01 OF 03 KABUL 000692 SIPDIS E.O. 12958: DECL: 02/25/2020 TAGS: PGOV PREL KDEM AF SUBJECT: NEW AFGHAN ELECTION LAW DECREE: AREAS OF CONCERN REF: KABUL 645 Classified By: D/Ambassador Ricciardone, Reasons 1.4 (b) and (d) ¶1. (C) Summary: President Karzai signed a legislative decree on February 17 with sweeping amendments to the 2005 Electoral Law, using his authority under Article 79 of the Constitution to issue legislative decrees during Parliamentary recess "in case of an immediate need." While some of the decree language provides needed technical clarification in a range of areas, the matter of immediate concern is how the decree increases the President's legal power over the electoral process. For the first time, the President would appoint the Commissioners of the national level Electoral Complaints Commission (ECC) and the new Provincial ECCs. While preserving a nationwide minimum of 68 women in the Lower House of Parliament, women's reserved seats in all elected bodies can also now be given to men in the event that a woman is elected but cannot fill her seat for any reason. The process of vetting candidates for membership in illegally armed groups, previously done through a commission including Afghan security ministries, UNAMA, and ISAF, appears to no longer allow international participation. Independent observers are no longer allowed to observe in a number of key situations including the sealing of ballot boxes and the examination of quarantined boxes by the Independent Election Commission (IEC). The Afghan Parliament, recently resurgent in the Cabinet approval debates, appears reluctant to take any action against the decree, citing Article 109 of the Constitution which prevents them from considering changes to the Electoral Law in their own election year. The next moves are up to the Parliament and civil society, on the basis of which Karzai likely will make his own moves to implement his decree. The decree appears aimed not only at "Afghanizing" the electoral process by diminishing what Karzai regards as unwelcome foreign interference, but also at strengthening the hand of the Presidency in the conduct of the elections at the risk of weakening the transparency and legitimacy of the process. We and others in the international community are engaging with Karzai and his senior advisors, MPs, and civil society members to mitigate those risks. End Summary. -------------- -------------- Electoral Complaints Commission: No Longer Independently Constituted -------------- -------------- ¶2. (U) All five commissioners of the ECC, which previously had three international commissioners appointed by the UN SRSG, one by the Afghan Independent Human Rights Commission and one by the Supreme Court, will now be appointed by the President. The decree does not preclude internationals from being appointed, nor does it empower any one Commissioner with a veto. The Constitution and the IEC Structural Law already allow the President to appoint all the IEC Commissioners as well as the justices of the Supreme Court. These three institutions provide the legal framework for elections. ¶3. (U) The decree also creates a structure within the ECC of a "headquarters" plus provincial offices that arbitrate all complaints unless some special circumstance requires them to go to headquarters. The 2005 Electoral Law said "the ECC may delegate its authority to commissions at provincial level, which commissions shall consider complaints within their jurisdiction and in accordance with the procedures established by the ECC." With the re-write, the President also now appoints not only the Commissioners at Headquarters, but all provincial ECC officials as well. ¶4. (U) The Decree states that the implementation of decisions taken by the ECC and its provincial offices on any sanctions or penalties for electoral offenses are "the responsibility of the related ECCs, the IEC, and the government." This is a complete departure from the 2005 Electoral Law that remained in force until this decree was signed. That law left the imposition of penalties up to the ECC Commissioners. -------------- Women: Losing Some Safeguards? -------------- ¶5. (SBU) The language on women in the decree is still under study by Dari-speaking election and civil society experts. As we understand it, new language in the decree regarding Parliament, Provincial Councils, District Councils, and Village Councils, could give an elected female's seats to men in the event that a woman cannot occupy it. Previously, a seat reserved for a woman was left vacant if there was no female to fill it. That has been changed to allow the seats to be filled "by the next most voted candidate, irrespective of gender" in the event that a female cannot be found. If a KABUL 00000692 002 OF 003 woman is elected to one of these bodies and she is incapacitated, an unspecified entity will attempt to fill her seat with the next most voted female who had been a candidate in the race. If there is no woman willing or able to take the vacated seat, then a man can fill it, potentially leaving the door open to intimidation of female candidates or sitting members. ¶6. (C) Decree language on women's seats in Parliament has caused some confusion. Formerly, the law required "at least two women from each Province" shall be members in the Lower House of Parliament, but the new decree says that "AN AVERAGE at least two women from each Province" shall be members of the Lower House. The Dari version is, according to several translators, potentially confusing. The GIRoA has told us that this was an attempt to make women's representation more aligned with population rather than province, so that some smaller provinces (such as Panjshir with only two MPs) would not have to only elect women. We have heard from many senior government officials that there is no intention whatsoever to reduce women's reserved seats. However, some civil society interlocutors are concerned about any openings in Afghanistan's conservative environment to diminished representation for women. -------------- Candidate Vetting: ISAF and UNAMA Roles -------------- ¶7. (C) Vetting of candidates who were leaders or members of an illegally armed group has been conducted in past elections primarily by the DIAG (Disbandment of Illegally Armed Groups) Commission, a joint body of UNAMA, ISAF, Ministry of Defense (MOD),National Directorate of Security (NDS),and Ministry of Interior (MOI). All these organizations previously had both a reporting and decision-making function on the Commission. In the 2009 election, 60 candidates for either President or Provincial Council were disqualified by the ECC, the body with final authority to determine who is and is not eligible to sit as a candidate. The vast majority -- 56 of these 60 disqualified candidates -- were removed from the election based solely on information provided to the ECC by the DIAG Commission. ¶8. (C) The new electoral decree places this function entirely in the hands of Afghan government organizations. Afghan government organizations have not shown great willingness to provide useful information or to make politically difficult decisions regarding the evaluation of information provided. An Afghan DIAG official who works for the DIAG Secretariat under a UNDP contract claimed that the current relationship between all the agencies on the Commission was effective and collegial with no difficulties between Afghan and international representatives. -------------- -------------- Candidate Requirements: High Cost of Becoming President -------------- -------------- ¶9. (C) The number of signatures required to become a candidate for any elected office have been too low to prevent frivolous candidates from running. This is part of the problem which led to an unmanageable number of Presidential and Provincial Council candidates in 2009. A positive development in the decree is that people wanting to run for office now must provide a greater number of signatures of registered voters in order to qualify. However, candidates are also required to pay significantly increased amounts of money in order to register. Presidential candidates have to pay 50,000 USD to register as a candidate (up from 1,000 USD) and District Council candidates must pay 200 USD (up from 40 USD.) This money is refundable only to the winner or a candidate who receives a certain percentage of the vote. While the amount required to register for the Presidential race is the highest and seems to present the highest barrier, the cost to run for local office could actually be far more of an obstacle to many rural Afghans. -------------- Observers: Stay Out of Sight -------------- ¶10. (C) A number of changes and additions to the electoral law language in the decree negatively impact the ability of independent election observers to do their jobs. The 2005 law said that independent observers could be present during the sealing of the ballot box. The decree removes the right of observers to be present at the sealing of the ballot box, allowing only candidate representatives in this instance. The decree also allows only candidate or political party agents to be present when the IEC is inspecting quarantined KABUL 00000692 003 OF 003 ballot boxes, not independent observers. -------------- Reactions Coming - Slowly -------------- ¶12. (C) The process of drafting the decree, voting on it in the Cabinet, getting the President's approval, and its gazetting by the Ministry of Justice has taken place with a great deal of secrecy. Afghan government and civil society officials we spoke with, as well as the head of the Afghan International Human Rights Commission (AIHRC),a body tasked with responsibilities within the decree itself, were unable to obtain a copy of it until we gave them one that we had obtained through Parliament. The Afghans who staff and run the DIAG process for the UNDP were stunned to learn of the candidate vetting portion of the decree. ¶13. (C) The head of the Free and Fair Election Foundation of Afghanistan (FEFA) tried in vain for days to obtain a copy of the decree from GIRoA contacts. We passed him one and FEFA released an initial analysis of the decree on February 22. The preliminary FEFA analysis notes the positive changes to the law including new provisions making it illegal for governmental organizations to interfere in elections. However, FEFA shares our concern over the largely non-refundable funds required of candidate applicants, the fact that the President appoints ECC Commissioners, the lack of criteria for who these appointees should be, the lack of clarity on when electoral complaints should be referred to ECC headquarters as opposed to provincial ECC offices, and the fact that men can now fill seats left vacant by women. ¶14. (C) UNAMA's internal analysis expresses concern over the barriers to female candidates presented by the new registration requirements, the change in the composition of the candidate vetting process, the lack of clarity in how many seats are reserved for women in Parliament, the fact that men can fill vacant seats previously reserved exclusively for women, the fact that the President may no longer have any restrictions on who he can appoint to the Upper House of Parliament, the restrictions put on electoral observers, the creation and role of the new provincial ECCs, and the lack of clarity over the primacy of the IEC versus the ECC. ¶15. (C) Parliamentarians have expressed confusion over their role in reviewing the decree. While the constitution prohibits them from discussing and modifying the Electoral Law during their final year, they are also empowered to review all legislative "emergency" decrees passed during their recess by the Executive. The relatively dynamic Yunus Qanooni, Speaker of the Lower House told us February 23 that his hands are tied by the Constitution. Given the ongoing concerns by those in the opposition about Karzai's manipulation of the IEC, there will be some who protest the ECC losing its independence. We have heard conflicting reports about their plans to review the decree, and with a holiday on February 25 their next business day is not until Saturday, February 27. -------------- Comment -------------- ¶16. (S) The President evidently has used his decree on the electoral law to settle outstanding scores from the 2009 Presidential election, and has taken aim at the ECC, DIAG, UNAMA, ISAF, and international and domestic election observers. In so doing Karzai has broken faith with his pledges to "work with us" in applying the "lessons learned" from the 2009 elections. His closest advisors claim to us that they disagree with Karzai's measures and that they see the serious political problems he has risked reviving and exacerbating for himself both at home and in his relationships with us and other international supporters of Afghanistan and its democracy. We are enlisting the support of these advisors, and that of MPs and civil society leaders, to mitigate the damage this decree could cause to our stake in strengthening Afghan democracy and governance. Now that we have examined the decree in greater detail, Ambassador Eikenberry will raise these issues when he meets alone with Karzai on February 25. To walk this decree back will take a concerted effort by Afghan parliamentarians and civil society in public and an assiduous behind-the-scenes effort by the international community. Embassy interventions with senior Karzai advisors will be reported septel. RICCIARDONE