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Controversy Over Afghan Election Delay Puts Constitution To Test

  • Abubakar Siddique

An Afghan man shows his thumb marked with ink and his voter's pass after registering to vote in the country's presidential poll, now scheduled for August 20.

An Afghan man shows his thumb marked with ink and his voter's pass after registering to vote in the country's presidential poll, now scheduled for August 20.

Just days after announcing the postponement of Afghanistan's presidential election, the country's Independent Election Commission finds itself amidst a storm of controversy.

Parliament accuses the commission of overstepping its legal authority in pushing the election date from the spring until August 20, while politicians are warning of an impending political crisis that could harm the country's fragile democracy.

Responding quickly, President Hamid Karzai found himself holding negotiations between parliament deputies and the Election Commission.

"This meeting was about the Election Commission's decision and to look into practical ways to tackle [the disagreements about] it," presidential spokesman Humayun Hamidzada said. "This is the first meeting, and such meeting will continue. We want to reach a national understanding that also suits our national interests."

The main sticking point was exposed on February 2 when Mohammad Yunis Qanuni, the speaker of the lower house of parliament, bluntly told the Wolesi Jirga that the Election Commission had no legal authority to delay the vote.

"Dear parliamentarians, I want to formally share my concerns about the holding of elections. If the situation continues as it is today, you will not see elections on August 20," Qanuni said.

"We all should ask the president of Afghanistan, as the guardian of the constitution, to make a decision about the delay of polls announced by the election commission. Secondly, he should also form a supervisory constitutional commission to prevent similar mistakes from being repeated in the future," Qanuni added.

Dismal Security Situation

Following extensive consultations, the Independent Election Commission cited the country's dismal security situation, lack of funding, and harsh weather conditions in remote areas as the reasons for pushing the presidential vote to August 20.

It is a fundamental disaster. But we have a legal way to prevent it.
But the Afghan Constitution specifically tasks the Election Commission with holding presidential polls at least a month before the end of the president's term in office on May 22, leading to expectations of an April vote.

And this has led lawmakers, opposition parties, and legal experts searching for the legal basis for moving the date.

In an interview given to RFE/RL's Radio Free Afghanistan just after the delay announcement, Kabul-based Afghan legal expert Nasrullah Stanekzai explained the legal shortcomings, and a possible solution.

"Basically, the Election Commission lacks the authority to change the election date for a day. It was a mistake by the special representative of the UN [secretary-general, Kai Eide], who advocated it on behalf of the international community in the Mishrano Jirga [upper house] a couple days back," Stanekzai said.

"I think the only way forward is for both houses of the Afghan parliament to now endorse the election commission's decision. Although it is a wrong decision, [they still need] to grant legitimacy to [the extension] of the president's term in office," he said.

No Easy Answers

Lawmakers, such as Kabir Ranjbar, have expressed similar dissatisfaction, but don't envision such an easy answer. Rajbar feels that the failure to follow the constitution in letter and in spirit could have dire consequences.

The fact that Karzai's term constitutionally ends in May places him on shaky ground legally, should he remain in office.

Azizullah Ludin, Independent Election Commission chief, announces the decision to delay the vote on January 29.
"This will create a wider political crisis. And this will be a constitutional crisis. And such a crisis is much worse than any other political or economic crisis," Ranjbar says. "It is a fundamental disaster. But we have a legal way to prevent it."

Ranjbar suggests that the Afghan parliament could avert a greater crisis by giving its endorsement to the electoral commission's decision. He adds that parliament could legally extend Karzai's term by allowing him to impose a four-month state of emergency, which would allow him to tackle the security problems and to facilitate a smooth transfer of power.

Presidential spokesman Hamidzada admits that the country's five-year-old constitution didn't foresee such complications.

"Definitely, our constitution didn't anticipate certain problems. There are, unfortunately, contradictions in the constitution. These problems should be look upon in a larger framework -- in the framework of the national interests," Hamidzada says.

Observers expect intense politicking on the question of what to do after Karzai's terms in office ends in late May. But they widely predict that all sides will eventually agree to the August 20 date, considering that it would be practically impossible to hold elections before that.

That would fit with suggestions made by Kai Eide, the UN secretary-general's special representative for Afghanistan, in an interview given to RFE/RL's Radio Free Afghanistan just before the decision to delay the vote was made.

"My recommendation would be to respect the decision that the election commission makes," Eide said. "I will respect that decision, and I hope that everybody will respect that decision."
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