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The lower house of the Afghan parliament, the Wolesi Jirga, will end its winter recess and begin its next sitting on 6 March 2016. With elections delayed, the current group of MPs is likely to be in place for some time. This seemed like a good time, then, to review the lower house’s performance in 2015. AAN’s parliamentary reporter, Salima Ahmadi, reveals issues such as low attendance, a preoccupation with presidential decrees and only a nominal oversight of the executive. MPs’ most interesting work, she noted, usually occurred during the hour-long open discussions when constituents’ concerns were raised.

(This dispatch is AAN’s second look at parliament. The first, published on 4 February 2016, looked at how the upper and lower house are set up and function.)

What are MPs supposed to do?

The Afghan constitution (article 81) stipulates that the Wolesi Jirga, “as the highest legislative organ, shall manifest the will of its people as well as represent the entire nation.” Like parliaments throughout the world, it has three principle roles: law making, overseeing the government’s actions and activities, and representing the people. (1)

By way of example, the tenth sitting (from 6 September 2015 to 20 January 2016) provides a useful insight into the workings of the parliament. 51 sessions were held, including two interpellations (in Dari and Pashto, isteza), when a minister is summoned for questioning, after which MPs can dismiss him or her, in a vote of no confidence. There were also 15 questioning sessions (istejwab) when ministers and other senior officials, such as the directors of the National Directorate of Security (NDS) and the Central Bank, are summoned for questioning (but without the threat of a no-confidence vote) and three presentations of reports (istema), when ministers are asked to tell the house about their ministries’ activities. (2) The house also held 30 plenary sessions, which are the general sessions, which all MPs should attend where there is a set agenda followed by an hour-long open discussion. A closed session was also held in which the devaluation of the Afghani compared to the US dollar and other foreign currencies was discussed.

During this tenth sitting, MPs approved a total of 39 pieces of legislation, including ten laws, nine international agreements, six presidential legislative decrees, the annual national budget for the fiscal year 1395 (20 December 2015 to 20 December 2016) and amendments to the Internal Rules of Procedures of the Wolesi Jirga. (3) MPs also rejected six presidential decrees. Several were left pending when MPs went into their winter recess and are due to be considered in March, when the lower house reconvenes.

At first glance, it may look as if the parliament worked hard throughout 2015. Whether any of it amounted to much, though, is open to debate. There were serious flaws in the carrying out of MPs’ legislative and oversight roles. Moreover, one major underlying problem must be highlighted: the low attendance rate. For the most part, there was no quorum of MPs, which meant that issues could not be voted on and the work of the house frequently ground to a halt.

Where were the MPs?

There are currently 240 MPs. (4) The required minimum number of MPs for a quorum to vote on legislation is a simple majority, in other words 121. On most days, however, this reporter noted attendances as low as 68 and 76. In October 2015, for example, out of 14 sessions, a quorum was scraped together on only six occasions. The best attendance that month was 131. (5) In the last three months of 2015, the house was relatively full on only three occasions, with the best turnout 184. Generally, more MPs showed up for the ‘big occasions’, such as when a minister was summoned or the votes on candidate ministers (although far fewer turned up for the earlier sessions when MPs grilled the candidates), or when the budget was discussed. “The reason for MPs’ low attendance,” a member of the parliamentary affairs office, an employee of the parliament, told AAN, “is that most of the current MPs have businesses and therefore they attend to their own matters, rather than focusing on the national issues.”

This failure to reach a quorum sabotaged important work. Voting and discussions had to be postponed on issues such as the proposed amendments to the Rules of Procedures of the Wolesi Jirga (4 November 2015), the SAARC agreement for the prevention of natural disasters and the Convention of Islamic Organizations on Food Security (both on 18 November 2015), as well as on presidential decrees pertaining to nuclear energy and agricultural pesticides (11 January 2016). The persistent low attendance of MPs also slowed down the overall performance of the Wolesi Jirga, as MPs were unable to deliver what had been planned in the legislative calendar. On occasions when there was a quorum, there would often be rushed, mass voting. On 13 January 2016, for instance, the Wolesi Jirga discussed and voted on five pieces of legislation in less than two hours. (6) MPs have occasionally been known to work harder. They extended parliament’s eighth sitting (July 2014-January 2015) by a week (under government pressure), delaying the winter recess so that they could vote on candidates for the cabinet and on the budget. Likewise in January 2016, some MPs wanted to extend the tenth sitting saying they were needed to closely monitor the quadrilateral meetings trying to start a peace process. However, they were unable to collect enough signatures for this motion.

The same pattern of poor attendance was noted in the meetings of the dozen or so specialised commissions (such as for security, development, complaints and the budget) and joint commissions that review draft legislation before it goes to the house. According to the Free and Fair Election Forum of Afghanistan (FEFA), most of the commissions’ decisions were taken without the necessary quorum, sometimes with as few as two or three members. (7) However, for a commission decision to be valid, a majority of its members have to be present (article 28 of the Wolesi Jirga Rules of Procedure). The attendance rate of the administrative board of the Wolesi Jirga (MPs who are elected to organise the business of the house) was no better. On 28 January, for example, MP Abdul Rahim Ayubi was scheduled to reveal to the administrative board a list of MPs whom he claimed had received bribes. On the scheduled day, the administrative board members did not show up and no session was held (see the report here).

No serious measures have been taken against MPs who are constantly absent from the plenary and commissions sessions. Articles 111, 112 and 113 of the Rules of Procedures of the Wolesi Jirga prescribe a range of measures depending on the number of days (or months) of unexcused absence, from salary reduction, withholding salary to the suspension of privileges. (8) These rules have never been enforced. From the pattern of (non-)attendance, it would appear that many MPs show up to parliament only in order to collect their wages or to question ministers.

What did MPs actually achieve?

Representing their constituents

Starting with the function of the house where MPs seemed to perform best – representing their constituents’ views – it appeared that the one-hour open discussion in every plenary session is the most relevant forum for MPs to air and debate citizens’ current concerns. For example, during the tenth sitting (September 2015 to January 2016), MPs discussed the alarming security developments in various provinces, the targeted killings of journalists and analysts, the critical situation of the economy, the date for the upcoming parliamentary elections, the presence of Islamic State (Daesh) fighters in Zabul and Nangrahar provinces, human rights issues, the peace process, the security of roads and various important infrastructure works. Unlike the time allocated for issues on the agenda, MPs frequently use more than the designated one-hour slot for the open discussion. Often, so many MPs put their names on the Speaker’s list for the open discussion that their time has to be limited to three minutes in order to accommodate all those who want to raise an issue.

Such issues have a real impact on constituents’ lives and are discussed on a regular basis, but rarely find their way into the legislative agenda. When it comes to law-making, MPs are reactive. They also appear to be overwhelmed by having to review and vote on the plethora of presidential degrees issued from the Palace.

Law-making

Members of the Wolesi Jirga have the authority to propose legislation (a privilege they rarely exercise) and to consider and endorse or reject legislation from government ministries or in the form of presidential legislative decrees. It was the decrees that were most commonly discussed and voted on. According to the constitution, these need Wolesi Jirga endorsement to become law.

During the tenth sitting, for example, the lower house received approximately two dozen presidential decrees for consideration. It approved six, rejected six and the remaining ones were left pending for after the winter recess. (9) Those rejected included two decrees, in November 2015, relating to electoral reforms. According to article 109 of the constitution, the Wolesi Jirga should not be deliberating on issues related to elections in the last year of its term. The lower house is, however, already outside of its constitutionally mandated term, so there was already a prior constitutional violation.

Oversight role

The other core duty of the Wolesi Jirga is to oversee the executive branch of government. It has to give a vote of confidence to government nominees for cabinet ministers and several other senior offices of state, as well as approve the budget. It also has the power to summon ministers to present an account of what they have done (hearings or istema in Dari and Pashto), for questioning (istejwab) and, most seriously, interpellation (isteza) when MPs can dismiss ministers for poor performance. However, in 2015 there was little sign of MPs investigating candidate ministers’ backgrounds or ministers’ performances or, indeed, of calling the government to account much at all. Voting on serious matters often appeared to have taken place along party or ethnic lines. Not every MP is swayed by such factors, of course, but the actual matter at hand frequently appears to be less important than group solidarity – or not – with the minister concerned. There are also frequent accusations of money changing hands ahead of major votes, something that is difficult to prove, although AAN did uncover evidence of this in 2010.

Endorsing and rejecting candidates

In 2015, parliament questioned and then approved or rejected two groups of candidates for cabinet minister posts, in January (at the end of parliament’s eighth sitting) and then in April (during its ninth sitting). AAN’s reporting noted the candidates’ extremely weak presentations and, in turn, weak questioning by MPs, few of whom had actually turned up to the chamber. Among those rejected were some very feeble candidates. However, the overall pattern – the rejection of all the women, Hazaras and Uzbeks – gave the appearance of party, ethnic or tanzim politics at play. (In the vote on the second group of candidates, MPs accepted all of them.)

After the summer recess, the Wolesi Jirga approved six nominees, including one woman (Ghezal Hares), for the Independent Commission for Overseeing the Implementation of the Constitution, but rejected a nominee who would have become the first female member of Afghanistan’s Supreme Court, Anisa Rasuli. President Ghani was criticised by conservatives for putting forward a woman for this position:

Menstruating women were considered unclean in Islam and were not allowed to touch the Quran, Qazi Nazir Hanafi [an MP for Herat] said. As judges put their hands on the holy book every day, and it was unfeasible for a Supreme Court judge to take a week off every month, ran his logic, Rasuli’s appointment should be opposed.

(For additional media reporting on this matter, see here.)

Rasuli narrowly missed out on the vote (she received 88 of the 94 votes needed). Ghani then put forward a male judge, Abdul Hasib Ahadi, whose nomination was approved (see here).

Calling ministers to account

The Wolesi Jirga summoned two ministers for interpellation sessions: Interior Minister Nur ul-Haq Ulumi and Minister of Communications and Information Technology Abdul Razaq Wahidi. Ulumi was summoned on 2 November 2015 and ordered to answer questions on the deteriorating security in the country and, in particular, how Kunduz had come to fall to the Taleban at the end of September. MPs accused the leaders of the National Unity Government of being “incompetent” as they had failed to protect people’s lives or the national interest. Ulumi was asked to explain the reasons behind the fall of several districts to insurgents. He blamed “countries in our neighbourhood,” singling out Pakistan, saying they did not want a sovereign Afghanistan. He attributed the fall of Kunduz to the Taleban as “a failure of government leadership.” Ulumi further noted “the withdrawal of international troops and a poorly equipped air force as being factors in the country’s deteriorating security situation.” He retained his position after MPs were apparently satisfied with his explanations and received 131 out of 151 votes.

Some ministers alleged that this support was not due to the fact that MPs had been convinced by his answers. MP Qais Hassan claimed, “A third hand is behind the 180 degrees change in lawmakers’ view,” adding, “Ulumi was not a good minister and did not properly manage his ministry.” In a Pajhwok article, MP Aziza Jales referred to “a door-to-door campaign in favour of the minister” and claimed that appointments based on “nepotism and misuse of tribal rivalries” had saved Ulumi from a vote of no confidence. “The same MPs who collected signatures to impeach the Interior Minister,” MP Rahman Rahmani from Balkh afterwards told AAN, “then became his defence lawyers during the interpellation session.”

On 4 January 2016 the Minister of Communications and Information Technology, Abdul Razaq Wahidi, was also summoned to give answers on alleged corruption charges and illegal appointments within the ministry, as well as a ten per cent tax collection on mobile phone credit. The presidential decree ushering in the ten per cent tax had been endorsed by the Council of Ministers while the Wolesi Jirga was in its summer recess. When they returned, MPs said it contravened article 79 of the constitution and, on 14 October 2015, voted it down. MP Ghulam Hussain Nasiri from Maidan Wardak said, “We must not discuss unlawful decrees.” “In the devastating economic situation of Afghanistan,” MP Ghulam Faruq Majruh from Herat told AAN, “imposing a ten per cent tax on telecom companies would be another burden on the nation.” There was no transparency in the tax collection process, he claimed, or where the money would be spent. Despite its rejection, telecom companies obeyed the decree and continued to enforce the ten per cent tax.

During his interpellation Wahidi rejected these allegations, calling them baseless. As for the tax, he said it “goes to the finance ministry budget and this ministry should be interrogated on how and where the budget is spent.” Wahidi added that in the first ten days of the decree being enforced, approximately 80 million Afghanis had been collected. Wahidi survived his vote of no confidence by a wide margin. (10)

On 13 January 2016, less than two weeks later, on their first day back in session and after the interpellation of Wahidi took place (see AAN analysis here), MPs inexplicably approved the tax in spite of their initial outcry. One MP, Shahidzada from Herat, said during the hour-long open discussion following the vote, that the sudden approval of the same decree (without any amendments) “shows the double standards of the Wolesi Jirga.”

While it may be that MPs were either satisfied with Ulumi and Wahidi’s explanations or had simply wanted to make their concerns known (and were never intent on sacking either minister), it should be noted that these same MPs, on 9 November 2013, endorsed the (now former) Minister of Refugees and Repatriation Affairs, Jamahir Anwari, who was publically accused of being involved in administrative corruption, fraud and land grabbing. Investigative reporting by the Independent Media Consortium on 28 September 2013 revealed detailed accusations that Anwari had UNHCR, the UN’s refugee agency, transfer tens of thousands of dollars into the personal accounts of family members and others (see reporting here, here in Dari and here). A month later, in October 2013, the Independent Joint Anti-Corruption and Evaluation Committee, a leading anti-corruption monitoring and evaluation body in Afghanistan, released its ‘vulnerability to corruption’ assessment on the process of land distribution for repatriations and displaced people led by the Ministry for Refugees (available here). The report detailed widespread administrative corruption, bribery, forgery, nepotism, embezzlement and poor customer service in the ministry. (11)

On 10 October 2013, 57 MPs requested that Anwari come forward to explain these allegations in an interpellation hearing. On 9 November 2013, the minister was subjected to a rigorous cross-examination (see here and here). He survived a vote of no confidence.

Approving the budget

As with the mobile phone tax vote in the autumn, MPs’ reluctance to endorse the budget dissipated eventually for no apparent reason. The Minister of Finance, Eklil Hakimi, had submitted the national annual budget on 25 November 2015 after it was approved by the Council of Ministers and discussed by the upper house, the Meshrano Jirga, which had made certain recommendations. The draft was then reviewed by the standing commissions and discussed in joint commission meetings, in accordance with the law. On 21 December 2015 (within the month allowed for by law, but already into the new fiscal year), the draft was presented to the lower house, which rejected it by a majority vote. The Wolesi Jirga members of the finance commission said both the budget and the proposed allocation of the budget for the provinces were unacceptable. MPs said the budget was “unbalanced” and accused the government of considering their own priorities and not the national interest (see here). The draft was sent back with comments and proposed amendments to the Ministry of Finance. The budget is one way MPs can put pressure on the government, which is has done in the past. In 2013 the Wolesi Jirga sent the 2014 budget back to the Ministry of Finance twice (see here and here).

With the Wolesi Jirga’s winter recess fast approaching, the government needed to react and press MPs to approve the budget. The initial draft budget had been 461.8 billion Afghanis (6.70 billion USD): 283.3 billion for ordinary expenditure and 178.5 billion for development (see here). During its second review of the budget, the Finance Ministry added just over 2.5 per cent to the budget (12 billion Afghanis – 17.4 million USD – of which 1.8 billion was allocated for ordinary expenditure and 10 billion for development). The head of the Wolesi Jirga Budget and Finance Commission, MP Ahmadyar Khan, who briefed MPs, claimed the new budget was more balanced because “18 different parts have been amended.” This time, MPs gave an overwhelming majority, with only six out of 146 members voting against the virtually unchanged budget.

MPs not going anywhere fast

In 2015, the Wolesi Jirga struggled to fulfil its constitutional function. Its current legality is also questionable, as it continues to sit beyond the constitutionally mandated end date of June 2015 (as analysed in the first part of this dispatch). The Independent Election Commission may have announced that parliamentary elections will take place on 15 October 2016, but that has not been generally endorsed. However, this batch of MPs will be with us for some – as yet unspecified – time to come. It is hard to see where an improvement on the 2015 performance could come from.

Edited by Lenny Linke

(1) In particular, the National Assembly holds the powers to: ratify, modify, or abrogate laws and/or legislative decrees; approve plans for economic, social, cultural, and technological development; approve the state budget, give or withhold permission for obtaining and granting loans; create and modify administrative units; ratify international treaties and agreements, or abrogate the membership of Afghanistan to them (see article 90, clause 1 of the Afghan Constitution). Based on the provisions of the Afghan Constitution, the Wolesi Jirga has some additional authorities compared to the upper house (Meshrano Jirga): deciding on the interpellation of each of the ministers; taking the final decision on the state’s development programs and state budget if there is a disagreement between the Wolesi Jirga and the Meshrano Jirga; approving the appointments according to the provisions of the constitution.

(2) Presentation of report (istema): listening to the report presented by the government to the plenary or commissions upon the request of the Wolesi Jirga;

Questioning session (istejwab): oral or written questions which are asked by the members of parliament in the commissions or in the plenary, which require responses from government officials during the session;

Interpellation sessions (isteza): the process of requiring a minister to provide an explanation for their actions in accordance with article 92 of the constitution, which can lead in the dismissal of a minister (see here).

(3) The 39 pieces of legislature approved during the tenth session included decrees related to electoral reform (two), the ten per cent tax on mobile users, agricultural pesticides, nuclear energy, procurement and transportation tolls, as well as decrees on amendments to the civil service law, the law on service management of electricity and amendments to the income tax law. See report “Wolesi Jirga performance in the tenth sitting” (6 September 2015 to 20 January 2016) by the Directorate of Legislative Affairs of Parliament, Kabul: 2016 (no web link).

(4) During the 2010 elections, 249 MPs were elected (according to the Afghan Constitution, there should not be more than 250 MPs in the Wolesi Jirga) for a period of four and a half years, or nine parliamentary sittings. This number of MPs has dwindled over the years to 240. In the last two sittings (January 2015 to January 2016), five MPs died (three in an explosion and one by natural causes). However, one of them, who died in a car accident, was replaced. Other MPs resigned from the Wolesi Jirga in order to take up positions in the government. Those MPs who died or resigned in the final year of the parliament, as per the rulebook, were not replaced.

Apart from the individuals officially recognised as no longer part of the Wolesi Jirga, there are also several MPs who are nominally still holding their mandates as MPs but who have refused to attend the Wolesi Jirga sessions due to their objection to the extension of the parliament’s terms beyond 22 June 2015. Despite their absence from the plenary sessions for the tenth sitting, they are still considered part of the Wolesi Jirga for the purpose of determining the quorum. During the last session of the tenth sitting, the Speaker of the House, Abdul Rauf Ibrahimi, singled out the following MPs, Ramadan Bashardost, Bakhtash Siawash and Farkhunda Zahra Naderi, as not having officially resigned from their positions. Therefore they need to be included in the number of active MPs. This means the total of 240 MPs in a plenary session can never been reached, hence the quorum technically should be adjusted to account for these ‘ghost’ MPs. However, given that parliament never comes near to being full, it is less significant than it might be.

(5) The Institute for Women, Peace and Security, a parliamentary oversight organisation, found that, on average, 57 per cent of parliamentarians were absent in the plenary sessions during the ninth sitting in 2015. In 2014, two out of three plenary sessions lacked a quorum (see Dari report here).

(6) When there is no quorum to vote on the draft laws then the scheduled draft laws and decrees are postponed until the next session. On some occasions there was mass voting. For example, on 13 January 2016, MPs voted and approved the following presidential decrees and laws in under two hours:

1. The law of regulating the telecommunications services charge

2. The legislative decree on agricultural pesticides

3. The legislative decree on nuclear energy

4. The toll taxes on gas and fuel law

5. Amendments regarding the procurement law

(7) “Wolesi Jirga Monitoring of Ninth Session of 16th Legislative Term: 16 Hut 1393 – 31 Saratan 1394,” Fair and Free Election Forum of Afghanistan (FEFA), Kabul: 2015 (see page 61).

(8) Rules of Procedures of the Wolesi Jirga

Rule 111

In case of a member’s absence in the plenary session or committee session, for each day of absence his or her monthly salary shall be deducted.

Rule 112

If a member cannot attend the sessions due to business related to his/her post [as MP] or because of lawful leave, his/her salary shall not be deducted.

This includes trips inside and outside the country relevant to the member’s job and the duties that are assigned to him/her at the time of conducting the sessions in the capital.

Rule 113

1. If a member is absent for one consecutive month, his/her main salary shall not be paid.

2. If a member is absent for two consecutive months, his case, based on the report of the administrative board, shall be investigated by the committee on rights, privileges and immunity of Jirga members. The committee shall put forward its opinion to the plenary session and in line with the article 108 of the constitution, the Jirga shall make the appropriate decision.

(9) Approved decrees:

1. 60th Presidential decree about telecommunication tax

2. 67th legislative decree about the ratification of law on service management of electricity

3. 82nd legislative decree about the ratification of some amendments in services of civil servants

4. 80th legislative decree about the rights of academic cadre for the institute of legislative affairs and academic research by imposing some amendments in this regard.

5. 71st presidential decree about agricultural pesticides

6. 69th presidential decree regarding nuclear energy

Rejected decrees:

1. 58th presidential decree about some amendments in the income tax

2. 75th presidential decree about the amendment regarding transportation tolls

3. 70th presidential decree about the addition of a second annex regarding a draft law on acting ministers or other officials.

4. 75th presidential decree regarding Structure, Authorities and Duties of Electoral bodies at the Independent Election Commission.

5. 74th presidential decree about the ratification of some amendments and the addition of some materials to the election law.

6. 70th presidential decree on the addition of a 2nd annex to the fifth article of the law on acting ministers

(10) Out of a total of 184 MPs present at Wahidi’s interpellation session, 104 MPs voted against his dismissal, 71 MPs voted in favour and nine votes were annulled (see here). Wahidi’s survival of the vote of no confidence was not without controversy, Kamal Nasir Osuli, an MP from Khost during the interpellation session for Abdul Razaq Wahidi, claimed that Wahidi had promised him 100,000 US dollars not to dismiss him. He also said that Wahidi had bribed another sixty MPs with 2,000 US dollars in order to also secure their support (see Dari report here).

(11) Earlier, UNHCR’s own evaluation of its Shelter Assistance Program conducted in the autumn of 2012, had also found the ministry to be an ‘unreliable partner’ due to corruption, inefficiency, mishandling of funds, lack of human resources, and an inability to demonstrate technical or thematic knowledge of the people under the ministry’s responsibility. In 2014, it was also revealed that a 2013 investigation by the United Nations Inspector General’s Office had found the ministry had misappropriated approximately 117,000 US dollars of UNHCR funds for staff bonuses, reimbursements to officials supported by forged documents and property rentals. Finally, the allegations were backed up by a report from the Special Inspector General for Afghanistan Reconstruction (SIGAR) in August 2015.