Main

Points in this proposed draft are:

1.       Proposed Model on IEC Commissioners’ Selecting Mechanism.

2.       Proposed Model on New IECC.

Proposed Draft on Amending Selection Procedures of Members in Electoral Bodies (IEC&IECC)Mandate and Duties Law

The selection procedure of members of the Independent Election Commission (IEC) is the much-needed and an important point in the established law with regard of their legal mandate and duties. In the given situation, this mechanism is direly needed to be taken into consideration in the new law toensure independence, impartiality and professional abilities of election commissions.

It is of paramount importance to preserve impartiality and performance of the IEC members. Also, ways need to be explored to shift more focus on membership’s conditions ofthe commission. In this state of affairs,tough conditions should be put in place for members of the commission in the law because soft conditions will pave way for recruitment of incompetent, nonprofessional, unqualified and unskilled individuals. The following principles and criteria should be followed to make the IEC members more efficient and result-orientedindividuals:

1.      Higher education in election related field: In a move to ensure professional capabilities of members of the commission, education and relevancy of the field study be specified. For example, in Afghanistan, (Law, Sharia Law, Political Sciences & Public Administration)are widely considered relevant fieldsto the elections.

2.      Work or research experience in election affairs: Having higher education in the relevant field, experience in election field could also greatly contribute to the professional capabilities of commission’s members to discharge their duties efficiently. Broad experience in election bodies, observation institutions and academic research in election-related field could help multiply the commission’s performance to great extent.

3.      No background or political affiliation: Possessing no or zero political affiliation to any political party could go a long way to ensure impartiality of members of the commission. In the given situation, it is mandatory to mention this sentence: No political affiliation or no political background.

4.      Individuals of greater reputation with no deprivation from civil rights: Mention of symbolic terms such as (good reputation and no deprivation from civil rights) is among the conditions that could not be of practical and effective aspects with regard to objective status of the country. But noting that alongside the main conditions can increase credibility of selection mechanism.

First Proposed Model:

All those eligible individuals should submit their curriculum vitae and other documents to the selection committee. The selection committee should be made bound to introduce as many as 30 competent persons from among the candidates to the president. The president should then introduce 15 most eligible and competent persons with respect to gender composition to Wolesi Jirgaor lower house for vote of confidence. The Wolesi Jirga will cast vote of confidence for 15 candidates with 7 candidates securing more votes should be appointed as IEC commissioners.

The composition of selection committee in this model is as follow:

1.      Chief justice of Supreme Court as chief of the committee.

2.      Chief of jurist association as member of the committee.

3.      Chief of lawyers association as member of the committee.

4.      Chief of Kabul’s University academic council as member of the committee.

5.      Chief of Afghanistan’s Academy of Sciences as member of the committee.

Advantages of this Model:

1.      This model paveway for identifying efficient and qualified candidates: Whereas eligible individuals have direct chance for candidacy, so the number ofsuitable candidates will be much more. Thus, selection committee will be in a position to pick candidates of high caliber and quality.

2.      This model will help minimize any influence by president in selection of the IEC members. The IEC members could openly submit their applications in accordance with this model. They will enter into the race to be supervised by an independent selection committee. In a move to get final approval (vote of confidence) fromthe Wolesi Jirga, the role of the president will be restrictedfrom both sides in selection of members.

3.      Credibility of selection of commission members is kept top priority in this model: While all three branches (Legislature, Executive and Judiciary) are involved in implementation of this model in one form or another, the legitimacy and credibility level of selection of the commission members will be a high priority.

4.      This model does not leave anymore need for an individual accountability mechanism: At a time when members of the commission get vote of confidence from the Wolesi Jirga then they could be easily held accountable for questioning by the Wolesi Jirga with regard of their performance. Thus, this model leaves no need for establishment of an individual accountability system.

Flaws of First Model:

1.      The execution of this model isa complex one and time consuming: The selection process of commission members should go through three phases in this model. All these phases such as registration of eligible individuals, introduction of 30 best candidates to president and introduction of 15 most suitable candidates by president to the Wolesi Jirga, the process of vote of confidence by the Wolesi Jirga), has its own complexities. On the other hand, it is time consuming and implementation of these phases needs at least 4 to 6 months’ time.

2.      There is a possibility of misuse of powers by political figures in this model: If Wolesi Jirga comes under influence by president or the concerned political parties in election then the president or political parties can legally exert pressure on the selection process of commission’s members.

3.      Strict response mechanism of the commission members in this model can damage independence of the body: In case of applying tough response rules, such introduction of members by Wolesi Jirga to judiciary or summon of commissioners would result in violation of the principles of independence of the commission, which is a universally recognized principal. 

Proposed Draft of Second Model

The selection committee should be made bound to introduce as many as 30 persons from among the candidates to the president. The president should then introduce 15 most eligible and competent persons with respect to gender composition to Wolesi Jirga or lower house for vote of confidence. The Wolesi Jirga will cast vote of confidence for 15 candidates with 7 candidates securing more votes should be appointed as IEC commissioners.

Composition of selection committee in this model is as follow:

1.      Chief Justice of Supreme Court as chief of the committee.

2.      Chief of the constitutional commission as member.

3.      Heads of both houses of national assembly as members.

4.      One female person from human rights commission as member.

5.      Heads of political parties who already occupied at least (6) seats in both houses of the national assembly.

Advantages of Second Model:

1.      It is pertinent to mention here that the selection process of commission’s members through this model is comparatively easy: The selection processof commission’s members takes place under two phases as its implementation is straightforward and take less time comparatively.

2.      This model strengthens spirit of political parties for enthusiastically participating in election process. Presence of heads of political parties in selection committee will help restore confidence among political parties in elections to consider themselves as main players of democracy.

3.      This model boost confidence among civil society and political parties on selection process: Another plus point of this model is that the involvement of political parties in selection process of commission’s members will naturally minimize the scale of influence by a president, government and their supporters.

This matter can garner more support from civil society and little known political parties regarding the implementation of the selection process.

Flaws of Second Model:

1.      Structural problems of selection committee in this model: The main problem in structure of the selection committee is identifying those political partiesholding (6) seats in both the houses of parliament. This matter requires an individual procedure which should be provided and carried out by the Ministry of Justice. But if president and government are on different page of the mater regarding the presence of political parties in selection committee, they can delay its formation by making multiple technical excuses.

Proposed Recommendations on Amendment of Election Commissions Mandate and Duties Law

The existence ofdiligent departments for addressing complaints during election is of greater importance because itsefficiency or inefficiency couldleave serious impact on the entire electoral process.

For result-oriented functioning of these departments, there is dire need to focus on objectivity, constitution of the country, and observerelevant international principles duringthe law making process:

1.  In compliance With the Constitution: The new modelto review electoral complaints should be in accordance with articles 156 and 122 of the country’s constitution.

2.   Independence and Professional Performance: The conditions for introducing individuals or entities should be considered thoroughly in an attempt to ensureprofessionalism and impartiality of members during their work.

3.  MaintainRight of Lawsuit: For observing this standard, in the first step complaints review process is needed to take place in two phases. In the second tread, primary and ultimate (lawsuit) sources for reviewing complaints should be separated from each other.

4.  Cost Effectiveness: For cost effectiveness of the new model, the complaints review institution should be an interim administration, not permanent. Similarly, the new model should demonstrate the ability to step up the review process of complaints.

First Proposed Model:

In this model, the high-powered complaints review body is divided into two parts: Central Complaints Commission and Provincial Complaints Commissions.

Similarly, electoral complaints are reviewed in two phases in this model. Provincial Complaints Commissions are primary source ofreviewing complaints andthe second phase (lawsuit) process is carried out by the special complaints tribunal.

Formation Procedures of Special Electoral Tribunal:

Special electoral tribunal comprises 5 members, with 4 of them be introduced by high council of Supreme Court and one by the Jurist Association as follow:

One member from high council of Supreme Court to serve as director.

One member from civil court of Supreme Courtto discharge his/her dutiesas member.

Two members from the appellate court to work as members.

One member from leadership of lawyers’ association.

Procedures of Provincial Complaints CommissionsFormation:

The provincial complaints commissions, a prime source to review complaints, are established under the structure of Independent Election Commission (IEC).

These commissions are directly accountable to the board of commissioners of the body in accordance with internal bill’s procedures.

Members of provincial commissions should be selected by IEC in accordance with the following terms and conditions:

Completion of 30years of age.

Bachelor degree in Law or Sharia Law.

No political affiliation or political background.

Work or research experience in electoral field.

Good reputation.

Review Procedures of Electoral Complaints:

All complaints should be reviewedunder special rules and procedures andintroduced by the central commission to ease implementation of relevant two phases.

In line with introduction of aboverules and procedures, the central complaints commission should have the power to monitor performance of provincial commissions.

The complaints commissions have the following obligations to ensure accountability and transparency in their performance:

Election complaints addressing session should be open.

All information regarding the body’s performance should be releasedon time and on regular basis.

Advantages of First Model:

This model containsits advantages such as:

1.      This model is consistent with articles 156 and 122 of the constitution: The article 156 of the constitution describes the IEC as governing and supervising body of elections. But there is no clear mention about IECCrole in constitution. As a result, some Afghan lawyers dub formation of IECC in disregard of the constitution due to lack of clarity in constitution. On the other hand, article 122 of the constitution that stipulates authority of judiciary in reviewing any claims, consideringfinal decisions of IECC contrast this article. But this problem can be resolved by using the above model.

2.      Credibility of final decisions in this model: As judiciary is regarded the only organ to be approached for all cases, therefore, final decisions of the special electoral tribunal can be largely acceptable for people. 

3.      This model reduces intervention of judiciary organs in electoral affairs: In response tothe concerns that if the polling results were not favorable, president and government by making additional step will change the results through intervention of judiciary organs in complaints reviewing process. But in this model, as judiciary is already involved in election process. It reduces likely experience of 2010 elections.

4.      This model weakens non-religious interpretation of election: While courts are recognized as fundamental symbol of Islamic Sharia in the country, engaging judiciary in election, can reduces negative interpretations against the polling process.

5.       This model lead to credibility and prestige of the main body (IEC): For example, when IEC proceeds first phase of the complaints process, this body will haveenough time to minimize problems inside the system by using its legal authority. On the other hand, the special electoral tribunal is an interim body in this model—this matter does not damage credibility of election commission as a main office.

6.      This model has low expenditure: For example members of the central commission already having salaries and transportation facilities, so they do not need any individual salary or transportation. Provincial commissions,which function under the framework of IEC, do not need internet access, office rent, electricity etc.

7.      This model further acceleratescomplaints review process: Whereas provincial complaint’s commissions are functioning under the structure of IEC, establishing provincial branches for IECC take less time. On the other hand, the IECC comprises representatives from credible departments, so there is no need for any complex mechanism.

8.      This model reduces false expectations among complainants: Whatever way the IECC resembles with the IEC in terms of structure, mandate and facilities, false expectation for continuation of the complaints procedure get increased, convincing of complainants became harder. However, special electoral tribunal plays smaller role as compared to IEC in this model.

9.      This model prevents widespread corruption: Whereas reviewing process of complaints is carried out by the two commissions in two phases, it reduces influence of the special tribunal on provincial commissions and possibility of seeking bribes from candidates.

Flaws of First Model:

1.      This model will lead to problems because of lack of independence of judiciary, especially Supreme Court’s high council: Because most members of the special election tribunal are introduced by high council of Supreme Court, therefore, they might be under influence of relevant organs during their work.

2.      This model prevents formation of individual accountability mechanism in the law: Whereas judiciary is an independent branch of the government, courts can only maintain accountable to high council of Supreme Court. On the other hand, judges who may be introduced to special tribunal have early immunity, so their accountability by other organs such as Wolesi or Meshrano Jirga’sis unjustified.

Second Proposed Model:

In this model, the complaints commission is divided into two parts: The Central Complaints Commission and the Provincial Complaints Commission that’s why the electoral complaints are reviewed in two phases.

Provincial Complaints Commissions are initial source of reviewing complaints and the second phase of (lawsuit) process is carried out by central complaints commission.

Formation Procedure of Central Complaint’s Commission:

The Central Complaints Commission has 7 members, including 5 principals and 2 observers.

The composition for principal members of the commission is as follow:

One member from the Constitutional Commission.

One member from Supreme Court’s high council.

One member from Afghanistan’s Jurist Association.

One member from Lawyer’s Association.

One member from Academic Council of Kabul University.

Two observers of the commission are introduced on behalf of UN and Europe representation.

(Member’s composition cannot be a problemin this model and it can be changed)

In this model, the Provincial Complaints Commission is completelysimilar with the First Model:

Electoral Complaints Review Procedures in Second Model is also similar with the First Model:

Advantages of Second Model:

1.      The existence of two foreign observers in this model increases the credibility of the IECC: The United Nations and European Union being credible organizations could share their international experience and output with the commission to enhance professional capacity of the commission. Similarly, the existence of foreign members could help strengthen the principle of impartiality in this body.

2.      This model is cost effective: For Example the members of the central commission already draw salaries and transportation services from their own departments, so there is no need for individual’s salary or transportation. Provincial Commissions, which function under the framework of the IEC, also do not need internet access, office rent, electricity etc.

3.      This model also accelerates complaints review process: Whereas provincial complaint’s commissions are functioning under the structure of IEC, establishing provincial branches of IECC take less time. On the other hand, the IECC is a composition of representatives from reliable departments, so there is no need to any complex mechanism. 

4.      This model helps preventinteraction of authorities and responsibilities between the two commissions: For example, both the bodiesenjoy similar authoritiesregarding vote audit, recounting and invalidationbased on election law. But the first phase of access for complaints is carried out by the IEC with respect to this model, while the IECC should proceed with the phase of lawsuit. This procedure divides the modus operandi of execution of mandate and duties between the two bodies and each department has its own responsibilities.

5.      This model also reducesfalse expectations among the complainants: As the IECC is similar with IEC in terms of structure, mandate and facilities, unfounded expectations for continuation of the complaints procedure get increased, convince of complainants became harder. While in this model, the special tribunal plays smaller role as compared to the IEC.

6.      This model stonewalls widespread corruption: Whereas the reviewprocess of complaints is carried out by the two bodies in two phases. It reduces influence of the special tribunal on provincial commissions and possibility of seeking bribes from candidates.

Flaws of This Model:

1.      This model lacks base in constitution: Some critics describe this model asirrelevant because of lacking base in the constitution. In constitution, only the IEC is mentioned as monitoring and governing body of elections, but there is no clear mention about the role of the IECC.

2.      This model contrasts (122) article of the constitution: The article (122) of the constitution stipulates authority of judiciary to review any case, and considering decisions of IECC as final can be in disregard with this article.

3.      This model facilitates meddling of justice organs in electoral affairs: Keeping in view the experience of 2010 elections,there are concerns that if polling results are not favorable to the government then it will manipulate the results through intervention of judiciary organs under the pretext of reviewing complaints.

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آدرس دفتر: ، ناحیه ششم، کارته سه، پل سرخ، سرک سوم، خانه نمبر (257)، دفتر مرکزی دیده بان انتخابات افغانستانMain Points in this proposed draft are:

1.