Letter of the SERC Commissioners
[27.Aug.2018 - 16:53]Letter of the SERC Commissioners (Shahmahmood Miakhel and Kawun Kakar) to the President of the Islamic Republic of Afghanistan
15 November 2015 [DRAFT English translation]
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To: his Excellency President of the Islamic Republic of Afghanistan!
Pursuant to presidential decree no.40 dated 25/4/1394 (3 July 2015), a special 14-member commission was appointed for the electoral reform. We, Kawun Kakar and Shahmahmood Miakhel, were also part of that commission, which was tasked with providing short term, mid-term and long term recommendations to the government in regard to the electoral reform. We thank you and other officials of the National Unity Government leadership for placing your trust in us. We also accepted the honorary duty of this commission because of our commitment to protecting the national interests of Afghanistan. Considering this commitment, we would like to share with you our opinion and recommendations as below. These recommendations and opinions are the product of close scrutiny of the electoral processes during past fourteen years as well as our experiences and familiarity with our people. These recommendations aim at strengthening democracy and electoral institutions in Afghanistan.
Though, we respect the other members of the Special Electoral Reform Commission and have good relations with them, however, as the election is a national process and considering the fact that there is a huge difference between our and their recommendations, therefore, we would like to present separately our suggestions and opinion to you and other senior officials of the National Unity Government.
Background:
During the last three months which is an insufficient time for carrying out this huge responsibility, we have had joint meetings for the reform of the electoral system. As part of our primary consultations, we travelled to provinces so that to know the opinion and concerns of people and to be able to submit such a proposal to the government which takes into account the ground realities of our country, is practical in Afghanistan’s context, acceptable to the people of Afghanistan, and is not against any ethnicity, region and or group.
Unfortunately, however, exploiting the parliamentary vacations, most of the Commission’s members were interested in making such haste decisions to give a specific quota to political parties. It is worth mentioning that the Commission consumed much of its time on how to give a stake to the political parties. The real objective of the Commission which is how to prevent fraud in elections and how to build trust in electoral process and electoral institutions, did not receive necessary attention. It is clear to all, that parties in Afghanistan have ethnic and geographical formation. This is why their proposals have been repeatedly rejected during the last ten years by the legal channels. Nonetheless, they intended to take this opportunity to present the same proposals and to make the government accept them.
When we expressed our dissent with the proposal of the Commission and when we announced our boycott, the government also approved only seven out of the ten points through a legislative decree and referred back the three points including the change of Afghanistan’s electoral system and the creation of transparency committee for further deliberation on their practical aspects. When we understood the individual and group opinion of the members of this Commission, they still emphasize on their former proposal with little change and intend to once again submit to the government their proposal in the form of a Multi-Dimensional proposal. Their new proposal is even more complex than the mixed proportional system and is impractical. This proposal of them is a new proposal with no precedent in any other country. The final goal of elections is to have a fair and proportional representation of people and stability of government which in no way is likely to be achieved by the multi-dimensional system. Afghanistan has turned a laboratory in past fourteen years with everyone testing new ideas in it. If elections do not result in stability of the government and if people do not see their proportional representation, they will result in further crisis and instability and will make the government face crisis.
Since our proposal differed from theirs, and since the difference is still there and we cannot reach to an agreement, therefore, we continued our boycott. We want to share in written form our opinion and concerns with you for the sake of carrying out our national responsibility. Our concers have legal, technical and political aspects, which are as follows:
Legal aspects:
1. We did not show our consent with all former seven points. The three important points that Voter Registration Cards shall be invalidated, voters’ list shall be prepared, and Tazkira shall be the basis for registration, we think that they are not practical in the proportional, parallel and or multi-dimensional systems and its implementation is in need for a lot of time. Because, the trust of people in electoral process is in its lowest level. In addition, if registration and creation of voters list were feasible in the current security situation of Afghanistan, this was also stipulated in the old election law, but the IEC was unable to implement this provision of the law due to the technical and security reasons. Preparation of voters list is feasible when constituencies are shrank in size to Single Member District (SMD) and when people have trust in results of elections.
2. Legally, any change in election law shall take place in the light of the Constitution. According to the article 83 of the Constitution, there shall be such measures put in place to enable electoral system to ensure general and fair representation of the people of Afghanistan. If people and residents of a region of Afghanistan are disenfranchised by the election law, or political parties and or coalition of candidates are imposed on people, and considering that giving a part to political parties and or coalition of candidates will not ensure fair representation, therefore, giving direct part to political parties and coalition of candidates is in contradiction with this article.
3. According to the article 83, the members of Wolesi Jirga shall be elected through free, universal, secret and direct vote of people. If political parties and or coalition of candidates is given part, this will mean giving the part of people to political parties and or coalition of candidates and members of Wolesi Jirga will be elected indirectly since the vote will first go to the political parties and or coalition of candidates and then political parties and coalition of candidates will indirectly choose their members from their lists according to their share of votes. Therefore, any percentage in any form allocated to political parties and coalition of candidates is in contradiction with this article of the Constitution.
4. The growth of political parties is possible in a better and natural way in the Single Member Districts, because people will directly vote to candidates of political parties. One constituency, one member does not hamper the growth of the political parties; as you see this system is used in India, USA, Canada, UK, France and other countries and there they have resulted in the growth and strengthening of political parties in those countries.
5. According to the article 109 of the Constitution, Wolesi Jirga cannot include during the last year of its legislative term the proposal of changing election law in their agenda. Though, according to the article 79 of the Constitution, the president can issue legislative decree during the parliamentary vacations, however, according to the same article, such legislative decree shall be presented to national assembly within 30 days afther their first meeting, and if rejected by the assembly, the decree will no longer be enforceable. If as per the article 109 the assembly cannot put in its agenda the change of election law, therefore, this legislative decree is against article 109 because national assembly cannot process it. The actual purpose or the legislative intent of the article 109 lies in the fact that change in election law is likely to advantage or disadvantage a region, people and or group, therefore, there shall be no rush in changing of the election law. There is need for precise and deep deliberation over changing of the election law so that to reach to a national consensus on this and to allow for the people to understand. Therefore, more time is needed for reaching to people regarding changing of the election law.
Technical aspects:
1. The proportional, parallel systems as well as the Multi-Dimensional system are very complicated systems which have gradually nurtured in the very small countries. Although multi-dimension system is a new experiment but we do not think Afghanistan has time for undertaking new experiments. As multi-dimension system has not been experimented in other countries so far, therefore, even the technical people also do not know about the outcomes and consequences of this system in Afghanistan. We believe that the multi-dimension system is going to pave the way for further fraud and irregularities and it possible that results of such elections may face problems yet again. A simple example is that in the multi-dimension system, candidates may form coalitions of parties and/or of individual candidates. The problem is that this concept is inapplicable in those provinces having one or two seats; because in such provinces anyone obtaining the most votes shall be the winner. We shall not be making different concepts and procedures for every other province. The second problem is associated with provinces having more seats; if there are 20 candidates in such province and two coalitions are formed by 2 groups of 5 candidates each, and the rest compete as independent candidates, In this case, each coalition will win seats proportionate to the total of its votes. In this way, if a coalition is entitled to two seats; the first person of the coalition may become a representative (winner) with 10,000 votes, but the second person will become a representative (winner) with only 1,000 votes. While the independent candidate may have 9,000 votes but still he/she will not be a winner.
In this system, there will also be an extensive wastage of votes and it will be unjust that a person with fewer votes will be a winner, while another person who has garnered many times more votes would be a loser. This problem can be explained better in the following chart.
Suppose a province has 4 seats and 10 candidates are competing for these seats, then:
Candidate No. List of Coalitions of Candidates as well as Independent Candidates Votes received Quota of seats Winning Candidates
1 Coalition “A” 17,000 Coalition “A” secured 20,000 votes and deserves 2 seats Candidate 1 is the winner
2 2,000 Candidate 2 is the winner
3 1,000
4 Coalition “B” 4,000 Coalition “B” secured 10,000 votes and deserves 1 seat. (4) candidates are winner
5 3,000
6 3,000
7 Independent (1) 3,500 (1) candidate is the winner
8 Independent (2) 3,400
9 Independent (3) 2,100
10 Independent (4) 1,000
If we look at the above chart, 40,000 votes have been polled, so one representative shall be elected per 10,000 votes; but based on the chart above, the first candidate of the coalition “A” is winner with 17,000 votes and the second candidate is the winner with 2,000 votes.
Similarly, the first candidate of coalition “B” wins with 4,000 votes and the independent candidate wins with 3,500 votes. However, the second independent candidate does not win with 3,400 votes, but the second candidate from the coalition “A” has won the race with only 2,000 votes.
2. Multi-dimension system requires long time and extensive expenses for public awareness as well as for casting and counting of the votes; therefore, the more the results of elections are delayed, the more possibility of fraud increases and trust of people lessen in elections.
3. The main goal of establishment of the Electoral Reforms Commission, after that the 2014 election went into crisis and claims of fraud surfaced, was to establish a mechanism for preventing fraud in the future elections. But if we are going to propose such a complicated system to the people, which they cannot understand, neither can the candidates understand it, nor can it be easily implemented, then this will further pave the way for and increase claims of fraud in the process.
4. We believe that the changes proposed by the Electoral Reforms Commission, such as preparing of a voters list, adopting parallel system or Multi-dimension system and/or making the electoral constituencies smaller are impossible due to time constraints and debar conduct of the parliamentary elections next year. The more the elections are postponed, the more they directly impact the legitimacy and stability of the system (regime).
5. Based on constitution, in addition to the National Assembly’s elections- the district, municipality as well as village councils’ elections are also to be held in the country. We don’t have any practical plan for these elections so far. What will be the role of parties or coalitions of candidates in these elections? What will be the number of members (representatives) in each district? How will the financial issues be addressed? And so forth.
6. How will the Multi-dimension system be implemented in the provincial, district and/or municipality council elections? This issue has not been pondered over at all.
Political aspect:
1. Such amendment in the election law will definitely either disadvantage/harm or benefit people from certain areas due to security, cultural and/or other issues; therefore fair representation cannot be ensured which is provided in the provisions of the Constitution. Therefore, the results of such elections may lead to instability rather than ensuring stability in the country. Afghanistan is not a laboratory where we should conduct new experiments every now and then. As we have learnt from the past, such new experiments have mostly endangered Afghanistan’s stability.
2. If we look at the current parliament of Afghanistan, those areas like the 9 districts from Zadran of Paktia province, Shindand, Ghazni and Khugiani district of Nangarhar province and many other parts of the country do not have representation in the parliament, due to the persistent insecurity in those areas. If, knowingly or unknowingly, people from many areas of Afghanistan are deprived of representation, God forbade, due to having such an inappropriate election law, the country may once again go into further deepen instability.
3. The most important matter is that ground realities of Afghanistan need to be taken into consideration, rather than suggesting a change with an idealistic approach, which may in no way be applicable in the current political and security situation of the country. Any change and reform in elections need sufficient time. Even if there are the best reforms proposed, but not implemented on a timely basis, they will of no use. It is important that the parliamentary elections are held soon is Afghanistan; as the more the parliamentary elections are postponed, the more it will negatively affect the system (regime).
Recommendations:
1. If the government intends to bring changes into the election law, then we suggest that there is no better system than the Single Member (Constituency) District (SMD) system, considering the Afghanistan’s context. Implementation of this system also needs time, but can easily be implemented. Objectives of this system are given below:
a. In the SMD system, on the one hand the parties will develop well and on the other hand no area will be deprived of having representation in the respective House of Representatives.
b. Similarly, in the SMD system, competition at the local level increases, and hence provides better opportunity of fraud prevention. Other than this, in the SMD system, the election results reflect the will of the local people, and hence people know who is representing them from their constituency.
c. In a SMD system, the candidates having middle class economy may also be able to win elections; and hence limit the influence of those having wealth and gun power.
d. People of Afghanistan are familiar with the SMD system, as this very constituency system was prevalent in the democracy decade in Afghanistan, and on the other hand its implementation is easier than other systems.
e. In the SMD system, direct link between the representative and voters is established.
f. Currently bringing any change in the number of representatives of provinces based on the SMD system is not possible, as no census has been conducted. For the purpose of delimitation of the SMDs, the previous or current populations’ statistics of the Central Statistics Office may be used; all population of the entire province may be divided by the number of representatives and then two, three are more districts may be merged to form a constituency (SMD) accordingly.
g. Given the current security conditions, if elections may not be held in one or more SMD constituencies due to the security problems; in that case election can be held there later on and hence people will not be deprived of the right of having their representative.
2. The main aims of establishment of the Special Electoral Reform Commission was prevention of fraud in elections, enhancement of public trust in the electoral process as well as the electoral commissions and to propose short term, midterm and long term recommendations to the government in the light of these objectives. Unfortunately, members of the Commission did not distinguish among the short term, midterm and long term recommendations; and put forward all the recommendations in a single package which has faced the upcoming parliamentary elections with a delay and has damaged the reputation of the Commission; as a result of which the level of distrust over the electoral process has further increased.
We hereby submitted our recommendations and concerns to the attention of Your Excellency, in order to have fulfilled our national responsibility in this regard. We hope for strengthening of democracy in Afghanistan and furthering trust and confidence in the electoral process.
Sincerely,
Kawun Kakar Shahmahmood Miakhel
Signature Signature
15 November 2015