The Electoral Law that wasn't amended (yet) and fraud by foreigners
posted: 01-04-2010 by: Martine van Bijlert
Karzai’s last minute attempt to rewrite the electoral law has been stalled, after Parliament rejected the decree on Wednesday. It has been a bizarre process in which political strong-arming and legal debates have made the outcome unpredictable. This continues to be the case.
The heart of the matter is that Karzai does not want to go through another messy election. He wants his associates to be able to manipulate the outcome without being publicly and humiliatingly challenged. He is the President, after all. The Parliament on the other hand was divided on the issue. Some would have liked to do the President’s bidding, in the hope that he would uphold his part of the deal (most prominently their re-election into the Parliament or a government post). Some see it as their duty, as a self-proclaimed opposition, to expose and increase his lack of legitimacy. Others are looking for the best way to assert their influence, partly as a legislative body but more importantly as actors that need to be courted and cajoled. And there were of course real concerns over the implications of the amendments (132 in total) and the way the President has sought to pass them. And finally, in the midst of all the politicking, the MPs were also trying to understand what the laws actually said, what that meant in this particular situation and how the ambiguity could be interpreted and used.
In this case the legal debate centred on three articles in the Constitution: (1) the article that states that during the last year of the legislative term “amendments to the election law shall not be included in the work agenda of the National Assembly” (article 109); (2) the article allowing the government to issue legislative decrees during the recess of the Wolesi Jirga, in case of an immediate need (article 79); and now that the decree has been rejected by the Wolesi Jirga (3) the article that describes what should happen when the decision of one house if rejected by the other (article 100).
The first discussion centred on whether the introduction of the electoral decree by the President was legally allowed. The article prohibiting the Parliament from discussing amendments to the law during its last year seemed to suggest that the law should not be tampered with just before an election. And although the President is constitutionally allowed to endorse urgent decrees during a Parliamentary recess, he is also constitutionally bound to present the decrees to Parliament within 30 days of its reconvening (article 79), which was obviously problematic.
So the second discussion centred on whether the decree should be sent to Parliament, once it was established that nobody was going to conclusively contest the President’s right to amend the law by decree. There was speculation that the President would instead seek a Supreme Court ruling or argue that the discussion of the decree would have to be done by the next Parliament, but in the end the decree was presented to the Parliament. Once the decree was sent, the main question was what the Wolesi Jirga was supposed to do with it. The Legislative Committee initially argued that as they could not discuss it they should pass it, but the session finally concluded that although according to the text of the Constitution they were not allowed to “include amendments to the law in their work agenda” (article 109), this did not prevent them from rejecting the decree. Article 79 did after all explicitly state that if the Parliament rejected a decree that the President had endorsed during the recess, it would become void. And so the decree was rejected (with only one lonely MP from Kunduz voting for the decree to be passed).
The President and his entourage had not seen this coming. So the President lashed out.
The day after the rejection Karzai visited the office of the Independent Electoral Commission (IEC) to thank them for their outstanding work and to respond to the latest developments. AFP describes how he acknowledged – probably for the first time – that there had been “very widespread fraud” during the presidential elections, but that this had been perpetrated by foreigners, singling out the United Nations (in particular the “office of the deputy”) and the EU. Azadi Radio quotes him, in another reversal of roles, praising the IEC for withstanding the heavy foreign pressure and even death threats and dwelling on how close the foreigners are coming to becoming an occupying force (predicting that if things continue like this “cooperation would turn into occupation, a legitimate government would become a stooge [literally: servant] and rebellion would turn into a national struggle”). He accused the internationals of wanting to “harm the Parliament like they have harmed me, so that I would be an illegitimate President and they would be an illegitimate Parliament” and called it unfortunate that the Parliament had apparently not realised this.
The outburst reflects his continuing anger over how in his eyes the Presidential elections were tainted by international interference. But it is also an attempt to tap into existing suspicions and resentments and to form a united front with (parts of) Parliament against the plots and schemes of the foreigners. The fact that the head of the Legislative Committee described how the committee during its deliberations had been lobbied by representatives of “eleven embassies and several international organisations” will have escaped nobody (it certainly did not escape Karzai) and although some will see it as constructive or innocuous, for others it will be more proof of un-called for international interference.
So where do we go from here? The President said that he will decide on how to respond to the rejection after consulting the IEC (and that he will not allow this to be an excuse for the foreigners to have their way and not have the elections), although it is yet unclear what that will look like. He has already indicated that he considers the decision of the Parliament in contravention of article 109 of the Constitution (the article that says they cannot put the amendments in their work plan), as has the Minister of Justice (who reportedly said that the Parliament had only been allowed to pass the decree, not to reject it). He may seek a Supreme Court ruling that says the same thing.
The Wolesi Jirga, in the meantime, has sent the decree to the Meshrano Jirga. The general opinion is that the Meshrano Jirga is more likely to do Karzai’s bidding (they will also be heavily lobbied and put under pressure). This opens up the possibility for the decree to still be passed after all, along the lines of article 100 of the Constitution – which states that if the decision of one house is rejected by the other, the two houses should set up a joint commission to find a solution to the disagreement and if this solution is endorsed by the President the law is considered passed – and even if no solution is found, the decree can still be returned to the Wolesi Jirga and passed in the second instance). So the situation is inconclusive, as usual leaving a lot of room for politicking and negotiations, and enough ambiguity to keep everybody guessing where this is going.
But it is worrying that the controversy about the elections is increasingly, and in an increasingly vocal way, framed in terms of an illegitimate and undesirable international interference. The international actors threaten to be caught out in the middle again, and probably in a more serious way: unable to prevent the actual fraud from happening, accused of manipulation of their own when trying, and finally blamed by some for spoiling the legitimacy of the elections. With Karzai on a collision course this is becoming a difficult situation to defuse.