Only at times when the parliament is not in session, the Afghan president is authorized to issue decrees with legislative power. President Hamid Karzai now made use of this constitutional provision – originally introduced for cases of emergency only – when right before the end of the parliamentary winter break he formulated the new regulations regarding elections. He probably did not expect the resistance of the parliament to which such a decree has to be presented at latest 30 days after it has reconvened.
The people’s representatives have turned a cold shoulder to the president. Only one MP voted in favour of the decree. As stated by the parliament’s president Younes Qanuni, twenty one major shortcomings were detected while discussing the law. A major flaw is that now any kind of foreign control over the elections process should be avoided. Hitherto three of the five commissioners of the Elections Complaints Commission were appointed by the United Nations. That gave the ECC enough backing to withstand the pressure of some of the presidential candidates who tried to influence the commission to act in their favour. What President Karzai presents as an “Afghanization of the electoral process” comes prematurely in a country that is not at peace with itself and renders the control instance for electoral complaints – by many Afghans considered as secret heroes of the past elections - vulnerable. Those elections had produced political turmoil because the electoral complaints commission had invalidated a significant number of votes so that in fact President Karzai did not obtain the necessary absolute majority. His main rival, Dr. Abdullah Abdullah, however, rejected a second round which allowed President Karzai to start is second term in office in November 2009.
Among the members of the future ECC, one still is supposed to be nominated by the Afghan Independent Human Rights Commission (AIHRC). Another one would be nominated directly by the president and the others through the supreme court and the presidents of the lower and the upper house – which have the reputation of taking stances rather close to the government.
Apart from that there are other remarkable passages in the new law. For candidates on the provincial and district level, „a good reputation“ is mandatory as well as their ability to at least read and write. “Both are very good points. This indeed offers a good basis on which notorious warlords and criminals can be excluded from elections. Nonetheless it is evident that these two very good points are not being applied in the presidential and parliamentary elections. There is no place for warlords, human rights violators and criminals on the village, district or provincial level but it is not a problem for them to become a member or parliament, senate or even president,” says Fahim Hakim, deputy director of the Afghan Independent Human Rights Commission and previously commissioner in the ECC.
One of the tricky constitutional regulations in this case is that the constitution bans the parliament one year ahead of parliamentary elections from bringing any changes to the electoral law. “In accordance with the constitution, the lower house cannot amend this law but only approve of it or reject it,” one parliamentarian said, arguing that therefore they did not have any other choice then rejecting it.
The upper house is making use of the same argument but with a different outcome: Because of the lower house being barred from amendments, its veto would also be invalid. The majority of the upper house seems to be backing Karzai’s law. This is not so strange, however, since one thirds of its members are directly appointed by the president. Due to the fact that the constitution is somehow vague on this point, it is not possible to have a water proof answer – neither to the question whether the president can issue this decree as a law without the parliament nor on the question whether the parliament has the right to amend or reject it. Considering the fact that this law touches upon the heart of democratic procedures – political participation – it casts a shadow of doubt about the intentions of a government to deny the parliament a say in this matter.
President Karzai disagrees with this point of view. He does not consider the parliament’s rejection as the people’s voice but suspects a foreign conspiracy. In a fervent speech against the parliamentary vote he even claimed that the rigging of last autumn’s presidential elections had mainly been carried out through foreigners. An interesting claim since actually most of the forged and later on disqualified votes had been pro Karzai.
On top of that, one MP from Paktia, Mr. Gul Pasha Majidi mentioned that President Karzai on Saturday assembled several members of parliament to ask them to revise their decision. If they would not do so, it would not be strange that the Taliban would become ever stronger. And then, even he – the president – might consider joining them. No matter whether the president was actually meaning what he was saying: This definitively enhances the fears of large parts of the population who feel increasingly under pressure from conservative militants and see little effort of the government to oppose them.
Now the Independent Elections Commission, an institution that during the presidential elections showed a strong bias towards president Karzai, decided that regardless of the lower house’s votum the presidential decree should be published and thus come into vigour. Often it is said that it is neither possible nor culturally adequate to establish a “Westminster democracy” in Afghanistan. It is not more appropriate, however, to drown out the disturbing voices of people who in this difficult political environment managed to win a seat in parliament. With their outright ignorance for the parliament’s decision the governmental institutions demonstrate they are not interested in any kind of participatory approach.