National Citizens' Movement for Free Elections (Namfrel)

BANTAY NG BAYAN

Afghanistan’s Electoral Complaints Commission

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Amendments to Afghanistan’s Electoral Law enacted in 2005 established an independent Electoral Complaints Commission (ECC) with broad jurisdiction to hear complaints related to violations of the electoral law and the power to order remedial action, impose fines and disqualify electoral candidates. In other words, the ECC is entrusted by law to adjudicate challenges and complaints related to the electoral process. A functioning ECC is needed to evaluate complaints against registered parliamentary candidates because there are provisions in the election law to invalidate the candidacies of those who have previously violated Afghan law or committed human rights abuses. Until recently, the Commissioners consisted of three international appointees of the United Nations, based on the 2005 Electoral Law, as well as one Afghan commissioner appointed by the Afghanistan Independent Human Rights Commission and another Afghan commissioner appointed by the Supreme Court. The electoral appeals body was intended to exist only over electoral periods and complete its work within 30 days of the certification of results. Since the Commission is not a permanent institution, much of the Afghan knowledge and expertise gained for that election could be lost, similar to what happened after the 2005 election.

After the final list of candidates for this year’s Wolesi Jirga election was published by the IEC, more than 400 complaints were registered regarding the ineligibility of the candidates, breach of regulations, and the misuse of state resources. As a complaint handling procedure, any person or organization with a legitimate interest alleging that an electoral offence has been committed may file a complaint with the ECC, either at its headquarters or at a provincial office. In addition, each Provincial ECC and the ECC itself has the power to investigate a matter on its own initiative, i.e. without there having been a complaint. During the later stages of the electoral process – campaigning (23 June-16 September 2010), voting (18 September 2010), counting and tallying (18 September onwards) – the ECC is expected to deal with complaints regarding electoral offences as defined in Article 63 of the Electoral Act. Complaints have to be filed within three days of the commission of an offence or within two days of the complainant becoming aware of it. The ECC has the authority to impose sanctions and penalties as identified in Article 64 if an offence is found to have been committed. Finally, the most important is to ensure a transparent, autonomous and accountable mechanism to address the objections and electoral complaints in the election process along with other key reforms to put in place such as those guaranteeing the professional and impartial performance of the officials and staff during the entire process. (Source: ANFREL)

An ECC poster for the 2010 Wolesi Jirga election:

UNAMA Press Statement on the ECC, September 15, 2010

15 September – “This election is about giving honest people the magic experience of voting to have a say in the governance of their country,” Judge Johann Kriegler of Afghanistan’s Electoral Complaints Commission told international media at a press conference in Kabul today.

The five-member national institution, established in April this year under Afghanistan’s electoral laws, will adjudicate complaints of electoral offences related to the 18 September Afghan parliamentary elections. Chaired by retired Afghan Supreme Court Judge Shafiri, the complaints body has three Afghan commissioners and two international commissioners.

Judge Kriegler told international media that he expected that there would be instances of fraud during the elections. “The reality is that Afghanistan is a war-torn country,” he said. “There simply isn’t a culture of electoral integrity embedded in the people yet. That can only come with the passage of time. And each successful election, or nearly successful election, prepares the way for this.”

Responding to a question, Judge Kriegler said that “obviously widespread fraud would effect the legitimacy of the elections.” “But,” he went on to say, “talking up the fraud before the elections effects the legitimacy of the elections. I respectfully put it to you that I have seen evidence of talking up the fraud in every international newspaper I have read. But let’s not prophesise.”

Commissioners set out the efforts of the ECC this year to ensure proper adjudication of all complaints of electoral offences. Since this year’s election is effectively 35 elections – one in each of 34 provinces and one constituency for the nomadic Kuchi community – the ECC has decentralised its operations to 34 Provincial ECCs. It is these PECCs, run by 114 provincial commissioners most of whom have legal qualifications, which have primary jurisdiction to hear complaints, with the national ECC considering appeals.

Judge Shafiri said that the ECC had received 1,089 complaints so far, on the eve of the close of the campaign period, and had completed its processes for 70 per cent of these complaints. He urged any voters or candidates who had complaints to come forward to the PECCs, ensuring that confidentiality would be protected.

With the campaign period closing at midnight on 15 September, voters go to the polls on 18 September. The Independent Election Commission plans to announce the provisional results in each of the 35 constituencies around 8 October, with final results, after the adjudication of complaints by the ECC, due at the end of October.

The parliamentary elections are fully Afghan organised and conducted. The Independent Electoral Commission is responsible for conducting the September parliamentary elections. The Electoral Complaints Commission adjudicates complaints of electoral offences. The United Nations is providing technical and logistical support to these two independent Afghan electoral institutions, in response to a formal request by the Government in January 2010, through the UNDP-ELECT programme. UNAMA supports the elections as part of Afghanistan’s wider political process and its support for strengthening of democracy, but UNAMA has no role in implementing, supervising or monitoring the polls.##


Additional notes:

Like the Independent Election Commission, the ECC has also been accused of non-impartiality, especially by candidates. Also, in the last election, we observed that the ECC at the provincial level was severely undermanned to be able to investigate efficiently all complaints filed before it. Another observation is the expected rigidity of its procedures since it is a government institution. For example, if the person who would like to complain lives far away from the ECC’s provincial office (which is usually the case, especially in the districts where said travel could last more than a day by foot or by donkey), he has no choice but to do so since the ECC would accept only written complaints with accompanying evidence personally filed by the complainant, and not through any other means like by telephone, if available. Since the process is tedious, it is possible that many prospective complainants would just choose not to complain. Another reason why people may just opt not to complain is fear, since they would be exposing themselves if they complain officially. This is especially true when members of the ECC has alleged ties with certain candidates.

(Report filed by Paolo Maligaya, Mazar-e Sharif, northern Afghanistan)

Written by namfrel

September 16, 2010 at 7:58 pm

One Response

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