Author: Ali Yawar Adili and Martine van Bijlert

Afghanistan’s new electoral law has come into force, which means that the requirement of electoral reform ahead of the next elections has – at least nominally – been met. AAN’s Ali Yawar Adili and Martine van Bijlert discuss the main features of the new law and note that the most controversial and complicated changes have been passed on to the Independent Election Commission to decide on. These include, most prominently, an instruction to decrease the size of the electoral constituencies for the parliamentary and provincial council elections, which could usher in an overhaul of the electoral system. This will be a politically fraught exercise, which will pave the way for a new round of bickering and delay. It also threatens to drag the newly established commission into political controversy.

In September 2016, the government finally managed to agree on a new electoral law, and, in November 2016, the president appointed and inaugurated a new Independent Election Commission (IEC) and Electoral Complaints Commission (ECC). The law was passed by presidential decree, based on a ruling by the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC), which ruled that, in this case, the president did not need to go through parliament. The ICOIC based its ruling on a different interpretation than the parliament had previously arrived at of an article in the constitution which prohibits the parliament from discussing the electoral law in the last year of its session (for details see previous AAN reporting here). The new law combines the two main laws that previously governed the electoral process and bodies: the Electoral Law and the Law on the Structures, Authorities and Duties of the Electoral Bodies (or Structure Law, for short). (1) The new law – simply titled ‘Election Law’ – replaces earlier legislative decrees that were issued by President Ashraf Ghani (but not enforced, as they had not been passed by parliament), as well as the two electoral laws that were signed by former president Karzai in 2013, ahead of the 2014 presidential election. The most important changes are discussed below (the full text of the new electoral law, in Dari, can be found here).

Changing the electoral constituencies

Potentially, the most important change in the new law is found in article 35. This article instructs the newly appointed Independent Election Commission (IEC) to “determine the Wolesi Jirga and provincial council electoral constituencies and to divide them into smaller constituencies.” It does not stipulate whether the constituencies should be multi-member or single-member. The decree that endorsed the law further instructs the IEC to conduct a technical study within three months of its establishment on the “better implementation” of article 35 (the study must therefore be finalised by late February, as the new IEC and ECC were sworn in on 22 November 2016). It is unclear what happens after that. The decree states that the cabinet will “assess the report and take a decision accordingly,” but does not specify whether it can modify the IEC’s proposal on the redrawing of the electoral constituencies, a move which, in any case, would reopen the discussions that had bogged down the finalisation of the law from the beginning.

Article 35 is a watered-down version of the ongoing attempts to replace the current electoral system (SNTV, or single non-transferable vote) with a first-past-the-post, single-member constituency system. Such a change would simplify the vote and make the outcome easier to understand for voters, but would also introduce a ‘winner takes all’ system in each constituency.

The Special Electoral Reform Commission (SERC), the commission that was tasked in 2015 by the government to come up with proposals for electoral reform, had been unanimous in their desire to change the SNTV system, but had had trouble agreeing on what should replace it. After considering several possible alternatives, the SERC developed a Multi-Dimensional Representation (MDR) system with multi-member constituencies, which it presented to the government in late 2015. (2) Two dissenting boycotting SERC members presented their own favoured system to the government, which was the first-past-the-post system that the cabinet tried to include in the current law (but failed to reach a consensus on). Opponents of the single-member constituencies fear that the system could fatally split their voter base and/or allow representatives in certain areas to be elected with very small numbers of votes (which is currently already the case in some insecure provinces). They worry that the IEC may be pressured to not only decrease the size of the electoral constituencies, but to also make them single-member.

Apart from raising the stakes of the competition in every single constituency (given that only one person can win), a change to single-member constituencies will also complicate the issue of the women’s quota. As reiterated in article 35 of the new electoral law, the IEC needs to observe article 83 of the constitution (paragraphs 4 and 6), which states that the Wolesi Jirga, apart from not exceeding 250 individuals, should be proportionate to the population of each constituency, and should include, on average, two women from each province. In a single-member constituency system, this would involve different constituencies for the male and female seats (as there are less seats for the women to compete over). This could possibly result in separate elections with separate ballots for male and female candidates, which would be a significant setback for women, particularly for the female politicians who aim to get elected on their own merit, by receiving enough votes vis-à-vis their male counterparts to win regardless of a quota.

The issue of the electoral system risks becoming polarised. Proponents of the different options keep a close eye on how they believe the changes might impact the relative balance of power in parliament. Particular concerns include the parliament’s ethnic make-up, its factional and geographical representation, whether the changes strengthen political parties or not, and what they mean for the women’s quota. In this climate of heightened suspicions, it will be difficult for the IEC to come up with a proposal that can unite the different sides, address the various concerns and not complicate election procedures further.

If the IEC and/or the cabinet fail to come to an agreement on a new electoral system, they may choose to retain the existing STNV system. Despite its drawbacks – large numbers of candidates, narrow margins between winners and losers, high percentages of ‘wasted votes’, and a fragmented parliament – SNTV is a known quantity. As we have seen so far, any change to the system is likely to affect the equation regarding who might benefit, and will draw opposition from those who believe they might lose out.