The Legal Framework of the Elections
The elections of 18 September 2005 are part of a process initiated by agreement in Bonn, 2001. The ultimate aim of the Bonn Agreement is to create a stable, peaceful state in Afghanistan governed by institutions derived from and legitimized by the democratic process. That aim, however, can only be progressively accomplished and the Bonn Agreement set down a broad timetable for doing so. Elections were an integral part of the framework.
The Constitution of the Islamic Republic of Afghanistan was adopted by the Constitutional Loya Jirga in January 2004. The Constitution envisages Afghanistan as an Islamic Republic with a directly elected President as head of state and a bicameral legislature. Presidential elections were held on 9 October 2004 with Mr. Hamid Karzai elected president. According to the provisions of the Constitution, the legislature consists of:
(i) The House of the People (Wolesi Jirga) with a total of no more than 250 seats directly elected by the electorates of the 34 provinces of the country, each one receiving a seat allocation broadly proportional to its relative share of the population and with each province electing at least two women ;
(ii) The House of Elders (Meshrano Jirga) – with 102 seats allocated as follows
- 34 seats , one for each Provincial Council, selected from the members of the Council
- 34 allocated to the district councils
- 34 appointed by the President, with 50 % being women, and with 2 representatives of disabled persons and 2 Kuchis (the nomadic community).
However, it has been decided not to hold district council elections and therefore the 34 seats in the Meshrano Jirga coming from this source must remain vacant. It has been suggested that the President could maintain the proportionality between its indirectly elected members – 2/3 of the total (1/3 from Provincial Councils + 1/3 from District Councils) and the presidential appointees -1/3 of total – by appointing only half his allocation - 17 persons instead of 34.
The Electoral Law of May 2005 further specifies the operation and meaning of the Constitutional provisions.
The House of the People (Wolesi Jirga) will have 249 seats – including 10 allocated to the nomadic Kuchi community as a 35th electoral constituency.
The Right to Participate
The right of citizens to participate in the Afghan electoral process is specified in the Constitution of Afghanistan of 4 January 2004, Chapter 2 (Fundamental Rights and Duties of Citizens). The relevant articles, enumerated below, state:
“Article Thirty-Three
The citizens of Afghanistan have the right to elect and be elected.
Law regulates the conditions and means to exercise this right.
Article Thirty- Four
Freedom of expression is inviolable.
Every Afghan has the right to express thoughts through speech, writing, or illustration or other means by observing the provisions of this Constitution.
Every Afghan has the right to print or publish topics without prior submission to the state authorities in accordance with the law.
Directives related to printing house, radio, television, press, and other mass media, shall be regulated by law.
Article Thirty-Five
The citizens of Afghanistan have the right to form social organizations for the purpose of securing material or spiritual aims in accordance with the provisions of law.
The citizens of Afghanistan have the right to form political parties in accordance with the provisions of law, provided that:
1. The program and charter of the party are not contrary to the principles of sacred religion of Islam, and the provisions and values of this Constitution.
2. The organizational structure, and financial sources of the party are made public.
3. The party does not have military or paramilitary aims and structures.
4. Should have no affiliation to a foreign political party or sources.
Formation and functioning of a party based on ethnicity, language, religious sect and region is not permissible.
A party set up in accordance with provisions of the law shall not be dissolved without lawful reasons and the decision of an authorized court.
Article Thirty-Six
The citizens of Afghanistan have the right to un-armed demonstrations for legitimate peaceful purposes in accordance with the law.
Article Thirty-Seven
Confidentiality and freedom of correspondence and communication whether in the form of letters or through telephone, telegraph and other means are immune from invasion.
The state does not have the right to inspect personal correspondence and communication unless authorized by the provisions of law.
Article Thirty-Eight
A person’s residence is immune from invasion.
Other than the situations and methods indicated in the law, no one, including the state, is allowed to enter or inspect a private residence without prior permission of the resident or holding a court order.
In case of an evident crime, an official in-charge of the situation can enter or conduct a house search prior to the permission of the court.
The official involved in the situation is required to obtain a subsequent court order for the house search within the period indicated by law.
Article Thirty-Nine
Every Afghan has the right to travel or settle in any part of the country except in the regions forbidden by law.
Every Afghan has the right to travel abroad and return home in accordance with the provisions of law.
The state shall protect the rights of the citizens of Afghanistan abroad.”
The right to vote
The Electoral Law (Art.13) enumerates, consistent with the Constitutional fundamentals, the requirements for the right to vote. They are cumulative:
- Be at least 18 years of age on day of election;
- have Afghan citizenship at time of voter registration;
- not have been deprived of civil or political rights by a competent court;
- and have been registered as a voter by the JEMB.
Voter registration cards were issued to the bulk of the electorate in relation to the Presidential Election of October 2004. In order to allow new voters and returnees to register, the JEMB ordered and facilitated a Voter Registration Update and Correction Period. It commenced 25 June 2005 and ended 21 July 2005. The total number of voter registration cards issued up to 21 July 2005 was aproximetly 1,695,953 this is a provisional figure and maybe adjusted downwards.
A recent JEMB decision means that persons returning to Afghanistan from neighbouring states (Pakistan and Iran) under UNHCR sponsored schemes between 17 July and 8 September will be able to register at six locations throughout the country. This is an important facility since voter cards issued to persons residing in Iran and Pakistan at the time of the Presidential Elections in 2004 are not valid for this election.
Candidate eligibility
Any registered voter may be a candidate provided that in relation to Wolesi Jirga, provincial council and district council elections he is at least 25 years of age and in respect of appointment to Meshrano Jirga he is 35 years of age (Electoral Law, Art. 14)
Certain classes of public official, judicial appointees etc. are not eligible to be candidates.
A further ground of exclusion from candidacy is specified in Art.15 (3):
“Individuals who practically command or are members of unofficial military forces or armed groups shall not be qualified to candidate themselves for the elections.”
This provision, which might be considered imprecise, has proved difficult to apply. Applying it, over 200 applicant candidates were originally excluded, but after allowing them further opportunities to come into compliance, only a total of 11 were finally excluded. The final list of candidates was certified by the JEMB on 12 July 2005. There are 2775 candidates certified for the Woolesi Jirga elections, and 3025 candidates for the provincial councel elections.
Women candidates
Electoral Law, Art.22, specifies that the total number of women to be elected to the House of the People shall be no less than twice the number of existing provinces in the country. This means at least 68 women must be elected yielding a percentage of approx. 25 per cent of all members of the House. This figure potentially places the Afghan lower house amongst the top 30 in the InterParliamentary Union’s “league table” for levels of women’s representation in elected national institutions.
In the Provincial Council elections, at least one quarter of the seats in each council must be reserved for female candidates (Electoral law, Art. 29).
The seat allocation system
In respect of both Wolesi Jirga and Provincial Council elections, the system chosen in the Electoral law for seat distribution is the Single Non-Transferable Vote (SNTV). This method of election for multi-member districts is, it must be noted, rare. In operation, it is simple: in an electoral district of five seats and 10 candidates, the five candidates with the highest votes take the seats. This method can be proportional in its results but can also be inequitable. Where parties operate, and a party wishes to maximize its uptake of seats, the system places a premium on acquiring significant knowledge about levels of support in the electorate, and then deciding on levels of candidate nomination: nominate too many candidates and you can disperse your votes too thinly among them allowing weaker opponents who have acted more rationally to concentrate their votes and take seats. Equally, if a party is poorly organized, its supporters can over concentrate their votes on one candidate leaving others with too few to take seats. In Afghanistan, because there is no history of voter behaviour on which to rely, creating and implementing rational electoral strategies could be difficult.
The media
The Electoral law establishes a set of principles for the coverage of the election campaign by the mass media. Article 50 obliges all of the mass media to accept the views and opinions of the candidates in a ‘fair and unbiased manner,’ in accordance with the Code of Conduct issued by the Media Commission. The State owned media are also obliged to provide spots for party political broadcasts and they should also ensure fair coverage of the candidates. There is a 30 day period for the official campaign period as well as an official moratorium of 48 hours before the polling starts (Art. 38 (1)).
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