Election Administration
The Joint Electoral Management Body
The institution legally responsible for overseeing and administering the elections is the Joint Electoral Management Body (JEMB). It was first established by Presidential Decree in July 2003 and has evolved over time. The current Electoral Law of 2005, Article 57, treats it as an institution in existence only for the Transitional Period and destined to be replaced by the Independent Electoral Commission. The JEMB’s executive branch is the JEMB Secretariat. The current JEMB is a hybrid entity of 13 voting members – the nine Afghan members of the Independent Electoral Commission (IEC) appointed by the President of Afghanistan and four international members appointed by the United Nations Special Representative of the Secretary General (SRSG). The Chief Electoral Officer, appointed by the SRSG to head the JEMB Secretariat, is also a member but has no voting rights. Thus, the Independent Electoral Commission, though established under the Constitution, currently has no independent function - its powers and responsibilities effectively being exercised within and by the JEMB.
The responsibilities of the JEMB, its Secretariat, and those of the Chief Electoral Officer, are set out in several Presidential Decrees, principally Decree No. 40 on Holding National Assembly, Provincial Council and District Council Elections as amended by Decree No. 24 of 7 June 2005.
Decree No.40, Article 10, as amended, fixes the quorum for JEMB meetings at 10 members and requires decisions of the JEMB to be taken by a 4/5 majority of members present. Article 10 further clarifies: “A 4/5 majority means that of 13 members,11 votes must be in favour; of 12 members nine votes in favour; and of 10 members, eight votes in favour.” Although the members of the JEMB work collegially and attempt to reach decisions by consensus, it can be inferred that the four international members can effectively prevent adoption of a decision which they do not favour.
The JEMB has power to issue Regulations, Procedures and Guidelines to implement the provisions of the Electoral Law (Electoral Law, Art.56). The decisions of the JEMB in relation to electoral matters are promptly posted on its website www.jemb.org in English, Pashto and Dari languages.
The JEMB’s current Rules of Procedure (RoP) were adopted on 19 June 2005. It sits normally on Tuesdays, Thursdays and Sundays but can schedule additional meetings as necessary. The JEMB has the right to invite national and international observers to observe its meetings (RoP, Art.3 (14)). It has invited the EU Election Observation Mission, subject to modest conditions, to observe its sessions relating to the Hose of the People (Wolesi Jirga) and Provincial Council `Elections to be held on 18 September 2005.
Additionally, the JEMB regularly publishes an update in all major languages both hard copy and electronically. This includes information about election-related events and feature articles. It can be accessed on the JEMB website.
The JEMB Secretariat
The JEMB Secretariat is best considered as the executive-operational branch of the JEMB and, as noted, is headed by an international Chief Election Officer. He is assisted by a Deputy, a Chief of Operations and a Chief of Staff – all are internationals. There are departments of External Relations, Legal Services, Public Outreach, Support, Program Management, Information Technology and Communications, Training and Capacity Building, Security and Field Operations. All are headed by internationals. The Secretariat is headquartered in Kabul and has field operations functioning through eight Regional Election Offices and 34 Provincial Election Offices. Each Regional Office is led by a Regional Election Coordinator and each provincial office by a Provincial Election Officer.
The Secretariat liaises closely with relevant security bodies both to minimise risks to staff and to ensure appropriate conditions for the various stages of the electoral process. (JEMB Decision No. 21 of 11/05/2005 on Policy Guidelines for International Military Forces’ Support of JEMB Activities).
In addition to the JEMB and the Secretariat, there are several other bodies that perform functions in relation to the electoral process.
Provincial Electoral Commissions (PECs)
Following the Presidential election of 9 October 2004, the EU Democracy and Election Support Mission Report recommended that a lower tier of election administration commissions be formed, preferably at provincial level, in order to ensure the effective administration of parliamentary and local elections (Report, p. 40). The JEMB considered the matter and established PECs by Decision No.19 of 3 May 2005 and approved A Regulation on the Establishment of Provincial Election Commissions.
Each province has a PEC composed of three members, one of whom must be a woman. They are established ad hoc for a given set of elections and then dissolved by the JEMB.
The functions of the PECs include: receiving and processing complaints according to Election Complaints Commission Rules of Procedure; reviewing candidate nomination application packages submitted to the candidate Nomination Office; advising the Election Complaints Commission (ECC) on the eligibility and qualification of nominated candidates; ensuring accuracy of ballot papers; providing advice in relation to location of polling centres; monitoring the free and fair conduct of polling. The PECs were given their own Rules of Procedure by JEMB Decision No. 27 of 2/06/05.
The PECs are a new feature of the electoral administration and it remains to be seen how they will perform. It should be noted that the Regulation (Art. 3) gives clear priority to the implementation of policies decided upon by the JEMB Secretariat even if they conflict with views of the PEC itself.
The Election Complaints Commission (ECC)
The legal foundation of the ECC is contained in Electoral Law, Ch.IX (Electoral Complaints and Offences), and Arts. 52-55.
It consists of five members, one appointed by the Supreme Court, one by the Afghan Independent Human Rights Commission and three international members appointed by the UN SRSG. The decisions of the ECC are final and the body itself is wound up no later than 30 days after final certification of election results.
The ECC has jurisdiction to consider and adjudicate a range of matters, including:
a. Complaints relating to electoral offences, including violations of the law in
the conduct of the electoral process, provided that the complaint has been
received prior to the certification of the results of the election; and
b. Challenges to the list of candidates or to the eligibility or qualifications of
a candidate raised during the electoral process.
Art 53 specifies a considerable range of electoral offences, including
“ a. Providing false information to the Commission, any commission
established by the Commission, or the Electoral Complaints Commission;
b. Threatening, intimidating or attacking the dignity of a voter or candidate or
a journalist covering the election in any way;
c. Impeding anyone, including accredited observers and agents, from
participating in the electoral process;
d. Committing fraud in voting or vote counting;
e. Offering or receiving a payment or other benefit for the purpose of
influencing the electoral process;
f. Possessing, or attempting to obtain, more than one voter registration card;
g. Voting or attempting to vote using a forged or altered card or the card of
another person;
h. Changing, replacing, stealing, or destroying electoral documents without
legal authorization;
i. Manufacturing false voter registration cards, ballots, or official forms;
j. Obtaining a voter registration card under false pretences;
k. Attempting to vote more than once in an election;
l. Interfering with election materials or ballot boxes without due authority;
m. Interfering with electoral officials in the performance of their duties;
n. Violating the Code of Conduct for Political Parties, Candidates and Agents,
or the Code of Conduct for Electoral Officials;
o. Making use of funds originating from illegal activities;
p. Making use of foreign funds for the purpose of influencing the electoral
process;
q. Inciting or provoking other persons to commit an Electoral Offence;
r. Violating provisions of this Law or other legal instrument governing the
electoral process;
and
s. Failing to comply with any order of the Commission, the ECC, or the MC.”
Sanctions and penalties in relation to a fairly standard menu of electoral offences are set out in Art. 54. One possible effect of Art. 54(1) d, below, should be noted. Even if a person has surmounted all challenges to nomination as candidate, has been certified as a candidate and has had his name printed on the ballot, the ECC can still disqualify him. If so, any votes cast for him would be deemed invalid. This may have relevance to those candidates who may yet be proved to have connections with armed groupings.
“Article 54 Sanctions and penalties
(1) Taking into consideration the circumstances, the ECC may, if it determines
that an Electoral Offence has occurred:
a. Issue a warning to, or order, the offending individual or organization, to
take remedial action;
b. Impose a fine not to exceed 100,000 Afghanis;
c. Prior to the certification of results, order a recount of ballots, or a repeat of
the voting;
d. Remove a candidate from the candidates list, if there are justified reasons;
e. Invalidate ballot papers not meeting the conditions for validity, or order the
count or recount of a ballot paper or a group of ballot papers;
and
f. Prohibit an offending individual from serving in the Commission or its
Secretariat for a period not exceeding 10 years.
(2) The ECC may impose sanctions on a political party or candidate for Electoral
Offences committed by its members or supporters. In imposing such a sanction the
ECC shall take into consideration any evidence demonstrating that the political
party or candidate made reasonable efforts to prevent its members and supporters
from committing Electoral Offences.
(3) In addition to imposing the above sanctions, the ECC may refer the offender
to the Public Prosecution Office if it has evidence that the offender has
perpetrated a criminal act.”
The Media Commission
The Electoral Law, Art.51, establishes a Media Commission that should be operational no later than 60 days before the Election Day in order to monitor the coverage of the candidates during the official campaign period. The Commission also has a mandate to assess complaints about media coverage and breaches of the Media Code of Conduct issued by it. Its overall composition and responsibilities are determined by the JEMB.
JEMB, Decision No. 44 of 19 July, 2005 appointed five Media Commissioners - three Afghan nationals and two internationals.
Additional matters
All government agencies in the capital, provinces and districts are obliged to cooperate with the Joint Electoral Management Body (Presidential Decree No. 4 of 7 June 2005, Art.4)
The United Nations Assistance Mission in Afghanistan (UNAMA) is under an obligation to observe and implement all decisions of the JEMB (Presidential Decree No. 4 of 7 June 2005, Art. 4).
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