Survey on the Composition, Mandate & Duties of Independent Election Commission
The democratization process needs the political structure to be reformed taking the realities of the society into account. To this end, we have to increase public awareness and engage CSOs more in this process. Elections, as an important part of the democratization process are used to bring elected officials into power. In order to hold transparent elections, the institutions responsible for administering elections should be regulated clearly with a law. Noting the lessons FEFA learned from two presidential elections and two parliamentarian elections, it has been proven that some problems are directly related to structural and legal framework of the Independent Election Commission. Afghanistan’s electoral system will encounter serious problems in the future if these existing problems are not resolved. A major challenge is the lack of the Law on the Commission’s Composition, Duties and Mandate and this has undermined the credibility of this body. A Draft Law on the IEC’s Composition, Duties and Mandate was prepared by the Independent Election Commission and sent to the Wolesi Jirga for approval on 2008. The Wolesi Jirga amended some of its articles and ratified this draft. But the President rejected to endorse it. Because he declared that some of its articles are in contradiction with the Constitution. After this draft law was interpreted by the Supreme Court it resulted in its dismissal from the Wolesi Jirga’s agenda for a quite some time. Meanwhile, the Presidential Decree No. 23 dated on 05/11/1383 has been still in place. This decree includes very brief and general provisions on the IEC’s Composition, Duties and Mandate. There is no requirement ensuring the Commissioners impartiality and professional capacity in this Decree as all commissioners are appointed directly by the President for a 3 year mandate. Furthermore, in this decree no provision exist pertaining to the institution’s independence to spend its budget, commissioner’s immunity from legal prosecution, and the Commission’s obligations to allow participation and access of CSOs, free press and political parties To the information of IEC developments.
Survey on the Composition, Mandate & Duties of IEC
The survey result shows that the majority of the MPs are not satisfied with the current situation of the Independent Election Commission. They believe the Commission needs to be reformed to boost up its credibility and ensure its independence. The survey shows that the election commission needs legal organizational and operational guaranties to hold freehand fair elections. The survey shows that most of the interviewees agree that the President’s competencies should be limited in commission’s affairs. Particularly they emphasize that the commission should not be political and must be immune from political interventions, in this sense; the commission’s members must not be aligned to a political party. The survey shows that MPs want the Wolesi Jirga to give a vote of confidence for the commission members. But this condition, which seems to unite MPs, brings back concerns that again the President may reject the new draft law claiming it against the Constitution as happened last time this law was sent to the President for approval. The MPs surveyed declared that the previous rejection of the draft law on IEC’s composition, duties and mandate by the President was illegal. Based on this survey there were some divisive issues among the MPs, too, especially on the role of CSOs in presenting their representatives for candidates to the Commission. On the number of the Members for the IEC, and their views are divided into two equal parts. About the quantitative composition of the qualified people for candidacy of commission membership position, the interviewees had controversial opinions and the MPs views are divided into three parts. Most of the MPs interviewed said, the law on IEC’s composition, duties and mandate must be reformed and believed the commission’s affairs should be regulated by a law not by presidential decree. Also the MPs believed that if the electoral procedures are changed during the election mission it increases the possibility of abuse. There seems to be a consensus among the MPs that the commission members should have legal immunity to keep the commission’s independency. A plurality of the MPs interviewed believed that the procedure for selection of commissioners is very important and has a direct effect on commission’s independence. About the organizational structure of the IEC and the criteria for the commissioners, majority of the MPs interviewed believed that higher education, experience and good reputation, lack of membership at political parties should be set as criteria for the a candidate to be considered for a commissioner of this body. MPs overwhelmingly agree that the members of commission themselves should elect their Chairperson and the commission must also retain the right to dismiss the person that they appoint as the Chairperson. Considering the survey findings, FEFA urges the people’s representative at Wolsi Jirga to take into consideration these findings and opinions of its members on the Draft law on IEC’s Composition, Duties and Mandate before discussing on Election Law. First the 19 Commission’s competencies should have a clear legal framework. FEFA reinforces the belief of most MPs survey that IEC should be ensured its independence and impartiality with the new law but that it also become a transparent institution. The findings of this survey are a good informative source and can be used to establish a credible, national, non-politic and independence election commission.
To this end, FEFA in cooperation with civil society entities and free media encouraged Wolesi Jirga to restart the process of drafting a new Law on the IEC’s Composition, Duties and Mandate. Supported by some MPs, this law was again drafted by the Wolesi Jirga’s Committee on Judicial and Justice Affairs and it has been sent to Wolsi Jirga’s each of 18 committees for comments. Ensuring the independence and impartiality of this Commission through Drafting the Law on the IEC’s Composition, Duties and Mandate is a significant issue for the upcoming Presidential election. Because there are doubts that if legal guaranties to keep the commission’s independence and impartiality are not ensured, the commission credibility and effectiveness will be further weakened. Subsequently, trust in elections and conflict will be likely after elections period. Lack of an effective consultative process which can collect the comments and alternatives of CSOs, elections’ elites and field experts to enrich the aforementioned draft law has been a big vacuum in this process. So FEFA as an Afghan CSO in close cooperation with legal experts, members of Science Academy, members of civil society and university lecturers codified a separate Draft Law on the IEC’s Composition, Duties and Mandate and shared it with the Wolsi Jirga’s respective Commission. The survey presented in this study conducted by FEFA aims to make the public aware of the different points of views and stands on the Draft Law on the IEC’s Composition, Duties and Mandate and to engage the field experts in amending this law. Therefore, it aims to fill not only the legal vacuum existing before the Commission but also to bring the necessary reforms on the country’s electoral system. The purpose of this survey is to collect the various ideas of MPs, members of independent human rights commission, representatives of CSOs and field experts on the Draft Law on the IEC’s Composition, Duties and Mandate. The purpose of the survey study is to assist decision making by offering the opinions of stakeholder and analyzing the findings to provide an inclusive solution. This survey has essentially focused on the IEC’s Composition, Duties and Mandate Law where the people who were directly or indirectly involved in this process have been interviewed. Therefore, we tried to select the interviewees based on their profession, experience, responsibility, and gender to combine their different ideas and get a multilateral vision on the issue.
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