Afghanistan’s parliament has relocated to a new building of Indian construction in Kabul. Moreover, a date has finally been set for the next parliamentary elections. With the parliament’s term extended until the elections, it has another year of sessions, which raises the issue of its very legality. AAN researcher Salima Ahmadi (with contributions from senior analyst Thomas Ruttig) explains how the two chambers are elected and how they function, focusing on the lower house. Salima also looks at the dispute surrounding the legal status and legitimacy of the parliament, and comes to the conclusion that, constitutionally, there is no provision that authorizes the president to extend the parliament’s term.
On 13 January 2016, a week before Members of Parliament (MPs) went into winter recess (a 45 days break, see here), the members of the Wolesi Jirga, the Lower House of Parliament, held their first session in the new parliament building. The new complex is a “symbolic gift of democracy” by the Indian government to Afghanistan. It covers 100 acres of land and its construction, which began between 2007 and 2009 (depending on the source), cost 200 million US dollars. The complex includes two session halls, one for the Wolesi Jirga, with a capacity for 294 seats and one with 190 seats for the Meshrano Jirga. Both leave space for the eventuality of an increase in the houses’ membership. Additionally, the building comprises five halls for parliamentary commission sessions, conference, press, computer and dining rooms, a library and a mosque able to accommodate 400 worshippers. Working offices for MPs have yet to be built but there is a plan to add them in the future. In 2005, former King Zaher Shah, then President Hamed Karzai and then Indian Prime Minister Manmohan Singh, laid the foundation stone (see here). The new central building – a mixture of Moghul-style and modern architecture, with a copper dome and marble works, is named “Atal Block”, after former Indian Prime Minister Atal Bihari Vajpayee. It was inaugurated on 25 December 2015 by Indian Prime Minister Narendra Modi during an official visit to Kabul.
Of some symbolism, perhaps, is that the new parliament complex is located close to the Dar-ul-Aman Palace in the southwest of Kabul, built under King Amanullah (1919-29) by German architects but destroyed beyond repair during a 1990 military coup attempt. Often mistakenly referred to as the ‘King’s Palace’, it was originally meant to house the first Afghan parliament.
The Meshrano Jirga (parliament’s upper house), the commissions of the lower house and other parliamentary staff continue to work in the old parliament building. All members of staff are expected to start work in the new building before 6 March 2016, the beginning of the new session.
Facts and Figures
The National Assembly (Shura-ye Melli) of Afghanistan consists of two houses, the Wolesi Jirga (House of People) and the (De) Meshrano Jirga (House of Elders), also known as the Senate. This bicameral model was inaugurated in the 1964 constitution and the stipulation was renewed in the 2004 constitution. The current Wolesi Jirga represents the 16th legislative term since parliament was first established under reformer-King Amanullah (1919-29) (1), and the second legislative term following the collapse of the Taleban regime.
According to the Constitution, the Wolesi Jirga has 249 members and 68 of those seats are allocated to women through a quota system. Currently, however, there are 69 women in parliament as one woman was able to secure enough votes to enter parliament even without this quota. The Constitution stipulates that there must be “at least, on average” two women from each of the 34 provinces (Art 83). Of these 68 seats, three are allocated to Kuchi women. (2)
Members of parliament are elected in a general election every five years – the last election took place in 2010. The one following this should have been held at the latest by June 2015, but has now been scheduled for 15 October 2016 – AAN analysis here.
The overall membership of the current Wolesi Jirga has been reduced from 249 to 246 as a result of terrorist attacks, whereby three MPs were murdered. (3) However, there is a legal provision stipulating that their seats be left open. Between 2005-10, when there was an even higher number of such incidents, victims were simply replaced. The candidate who had secured the next largest number of votes would assume the vacant position. However, given that he/she may have been a political opponent, this practice, which was widely known as the “assassination clause,” was seen as possibly encouraging of such acts. Therefore, this practice was altered and now only those MPs who die of natural causes are replaced, and only “if more than one year remains until the end of the term of office of Wolesi Jirga.” (4) So far the only MP replaced has been Shahnaz Hemati from Herat province, who died in a car accident. The next female runner up for Herat province, Semin Barakzai, took her seat.
Other replacements of MPs occurred because at least seven MPs from the current parliament resigned ahead of the 2014 presidential elections in order to campaign for presidency or other key positions in the government. The parliament replaced the resigning MPs, including Haji Mohammad Mohaqqeq, Sayyed Ishaq Gailani, Sayyed Hussain Anwari, Abdul Rab Rassul Sayyaf, Shah Abdul Ahad Afzali, Sayyed Hussain Alami Balkhi, and Ibrahim Qasemi. However, later on in 2014, other MPs resigned as well ahead of the second round of the presidential elections because they were hoping for key positions in the new government (such as ministers, for example.) Those who resigned were not replaced, as this parliament entered its last year of tenure.
The Meshrano Jirga has 102 members, three individuals from each of the 34 provinces. A third of them are appointed by the president for a five-year term, but President Ghani has just extended the term of these appointed members until the end of the 16th period of the Wolesi Jirga (see here). The remaining two thirds are elected from both district and provincial councils. The members of each of the 34 provincial councils must elect one parliamentary representative from among themselves, as should all district council members for each province. Half of the president’s appointees should be women. The Meshrano Jirga also has two seats reserved for Kuchi and two seats for the disabled and impaired. (5)
As no district council elections have yet taken place, it was decided on 20 February 2011 by presidential decree (during Hamed Karzai’s tenure) to put in place an interim measure to temporarily fill the missing seats of the district council representatives with 34 provincial council representatives. Thus, instead of selecting only one provincial council representation for the Meshrano Jirga, each provincial council selected two. However, on 18 January 2015, President Ghani informed the Meshrano Jirga in a letter that “he could not nominate anyone for the Senate seats reserved for district council representatives” – and that therefore the Meshrano Jirga would only consists of 69 members until the district council elections are completed.
How is the Wolesi Jirga elected?
Neither the Afghan Constitution nor the Electoral Law specify which electoral system is used for the parliamentary elections. Article 24 para 1 of the 2014 gazetted Election Law notes that the candidates with the most votes will be awarded a seat. A system based on the Single Non-Transferable Vote (SNTV) was eventually chosen. (6)
In a SNTV system, candidates run as individuals (as independent or political party candidates) but not on a party list. Candidates also stand in multi-member constituencies and the female quota has to be figured in. Constituencies are the same throughout the 34 provinces. The number of seats is allocated according to their respective population size. For example, in Kabul province there are 33 Wolesi Jirga seats, out of which nine are for females. These seats are then given to candidates who receive the most votes, regardless of gender. If, however, female candidates do not win at least the number of seats reserved by law for their province, the women who win the most votes among all female candidates will then be allocated those reserved seats. This prevents the fixed quota from indirectly setting a limit on how many female candidates can be elected in each constituency.
Controversially, while ten seats in the Wolesi Jirga are reserved for Kuchis, none are set aside for the Hindu or Sikh minorities (see AAN’s previous report here). This proposal was part of a reform packet submitted by the Electoral Reform Commission, however it was rejected by parliament.
How does parliament function?
According to the Afghan constitution, the parliament is the highest legislative organ in the country (Art 81) and has the power to ratify and approve laws, legislative decrees and budgets (Art 90). All legislation must be approved by both Houses and endorsed by the president. (7) Each House has an administrative board (the president, the vice-presidents, the secretary and assistant secretary) as outlined in chapter 3 of the Rules of Procedures of the Wolesi Jirga that prepares and presides over the plenary sessions, standing commissions (ad-hoc commissions can also be appointed for specific tasks), a Committee of Presidents (of the Commissions), joint committees (between the upper and lower house, and within the lower house) and a General Secretariat (in charge of the minutes of the meetings and in control of the speakers list).
The Wolesi Jirga holds regular plenary sessions three times a week, on Saturdays, Mondays and Wednesdays. From 6 September 2015 to 20 January 2016, the Wolesi Jirga held 51 plenary sessions. Each year the parliament has two sittings, divided by a winter (45 days: 20 January to 5 March 2016) and a summer recess (45 days: 23 July 2015- 6 September 2015). The Wolesi Jirga’s president/speaker of the house is elected for the term of legislature, which is five years. The remainder of the administrative board (the first, second vice presidents/speakers, secretary and assistant secretary) is elected for a one-year term. Following the winter recess, there is a vote under the supervision of the Speaker of the House, Abdul Rauf Ibrahimi, to elect new first and second vice presidents, and both a secretary and an assistant secretary to the Wolesi Jirga.
In the plenary sessions, all MPs must be present and these sessions are broadcast live on the parliament’s own TV channel. Each session has two parts, the ‘free hour’ discussion (usually from 8:00 to 10:30 am), in which MPs can suggest topics or make statements and set the agenda for the session. In the latter part, only those issues approved in advance by the Committee of the Heads of the Wolesi Jirga’s commission are discussed. Key government officials may be summoned, questioned and – if 2/3 of those MPs present agree – subjected to a vote of no confidence. Since the end of the summer recess, two ministers have been summoned but both survived a vote of no confidence.
Standing Commissions of the Wolesi Jirga
Commissions are specialised bodies that deal with specific issues on different topics. They discuss and review draft legislation before it is added to the plenary session’s agenda for discussion and vote. The commissions hold sessions twice a week, on Sundays and Tuesdays.
There used to be 18 standing commissions of the Wolesi Jirga (see list of commissions and members in Dari) but on 28 December 2015 the House amended its Internal Rules of Procedures and reduced their number to 15. (8)
There are no strict criteria for how an MP becomes a member of one of these commissions, or of which one. The Wolesi Jirga Rules of Procedures only indicate that “each member based on their profession and experience could choose a committee,” and that “each Standing Committee shall be composed of 10 to 25 Members.”
A low attendance rate in the Wolesi Jirga was also reflected in the commissions, and reported to affect the quality of their work. Many MPs complained about flaws and problems in legislation put up for voting in the plenary. Talking to AAN, legislator Haji Abduh, head of the Judicial and Justice Commission, stated that “out of 25 members only about five to seven showed up in the commission meetings.”
During the Wolesi Jirga’s first post-Taleban term, mainly individual MPs were targeted by insurgents; now it seems the parliament has also become a target. During its session on 22 June 2015, the Wolesi Jirga hall was attacked precisely when MPs were due to review the government nominee – Muhammad Masum Stanekzai – for the defence minister’s position. The attack began with a suicide car bomb detonating at the front gate of the compound. While the attackers were unable to penetrate the parliament building itself, the explosion caused damage to the structure and slight injuries to observers. No MPs were wounded or killed but two passers-by, a woman and a child, died while dozens of others were injured (see report here). In another incident in November 2014, Shukria Barakzai, an outspoken MP and women’s rights advocate, survived a suicide attack on her vehicle near parliament, on the Dar-ul-Aman Road; she was slightly wounded.
Is parliament legal at the moment?
The current Wolesi Jirga was elected on 18 September 2010 and its regular term was supposed to end on 22 June 2015. The Afghan Constitution states in Article 83 “…the work period of the House of People shall terminate, after the disclosure of the results of the elections, on the 1st of Saratan [22 June] of the fifth year [of its term] and the new parliament shall commence work.” This effectively means that new parliamentary elections should have taken place and the election results announced before 1 Saratan 1394 (22 June 2015). The new parliament should have started work on that date. However, elections were postponed as the NUG (National Unity Government) had promised an electoral reform (see previous AAN report here. Given this has not happened, there is now some confusion both within and outside parliament as to whether the current Wolesi Jirga is even legal.
The current parliament’s mandate expired on 22 June 2015 without new representatives having been elected and without a new election date having been set at that point. In order to avoid a legal and constitutional vacuum that might have led the country even deeper into crisis, President Ashraf Ghani extended the parliament’s term on 19 June 2015. (9) It allowed MPs to continue their work until the next parliamentary elections were held – whenever that would be.
The extension of the parliament’s tenure was welcomed by some MPs, who believed it to be a necessary step to prevent a deepening crisis in the country. Some of them may have been motivated by the chance to remain in their positions in order to enjoy their privileges and powers. Other MPs and some legal experts – including the typically vocal and popular Ramadan Bashardost – vehemently opposed the decree. By invoking popular hearsay, he indirectly accused MPs from the first group of “trading” with government leaders, extending parliament’s term “in exchange for collecting votes in their favor in the second round of presidential elections.” Gul Rahman Qazi, a law professor and chairman of the Constitutional Oversight Commission in the previous administration, stated “at the outset of the new government, first our executive power lost its legitimacy, because it is formed based on a so-called political agreement.” “Apart from that, we are witnessing that the judiciary’s power is being run by an acting head that entirely has no legitimate reference in the constitutional law, either. As a final point, we have our legislative power, whose term will end,”. According to MPs and experts, the extension of parliament is “arbitrary” and a “violation of the constitution,” and the continuing functioning of the House of Representatives beyond 22 June 2015 illegal.
The debate about the legitimacy or illegitimacy of the Wolesi Jirga’s continuing work has caused many MPs to stop coming to (most of) the plenary sessions. The attendance rate – already low and often too low for a vote – has sunk to an alarming level. Some MPs only turn up when votes are due, particularly regarding new government appointments. A number of MPs, including Bashardost, Baktash Seyawash and Farkhunda Zahra Naderi, as well as around 20 others, have ceased to attend plenary sessions altogether as a sign of protest, while stopping short of officially resigning (this group have also boycotted appointment sessions.) Nevertheless, MPs in nearly all sessions demanded that an election timeline, including a new election date, be set.
That parliament in its diminished form rejected the presidential decree on the Structure, Authorities and Duties of the electoral bodies (part of the demanded electoral reform), reflects the controversy between the Ghani camp and the Abdullah camp about what exactly should be reformed in the legal and institutional framework of the elections. It also shows that both camps are able to muster a quorum when such key decisions have to be taken.
But even in this, there is a problem of legality. According to the constitution, the Wolesi Jirga does not have the authority to alter election-related laws in the last year of its tenure. Current confusion regarding the Wolesi Jirga’s legal situation as well as the election issue in general, including the need for electoral reform and what this should entail, is the result of half-solutions for legal and technical problems that have been mounting since the first electoral cycle of 2004/05. This not only throws into question the legality of the forthcoming elections (possibly going ahead without significant reform), but also the legitimacy of some of Afghanistan’s key institutions.
(This dispatch will be followed by an analysis of what the Wolesi Jirga did during its last sitting from 6 September 2015 to 20 January 2016, and how it performed.)
(1) The constitution (nezamnama) of 20 Hamal 1302 (9 April 1923) established an advisory “State Council,” consisting of equal numbers of members appointed by the king and elected “by the people.” Neither the overall number of council members nor the election system was specified.
(2) The second clause of Article 83 of the Constitution stipulates “the number of the members of the House of People shall be proportionate to the population of each constituency, not exceeding the maximum of two hundred and fifty individuals. Electoral constituencies as well as other related issues shall be determined by the elections law. The election laws shall adopt measures to attain, through the electoral system, general and fair representation for all the people of the country, and proportionate to the population of every province, on average, at least two females shall be the elected members of the House of People from each province.” For some provinces – such as Nimruz, Panjshir and Nuristan – with a relatively small population, the total number of seats in parliament might equal the total number of seats reserved for women per province (see a previous AAN report).
Based on a complicated system of seat allocation, some provinces might in fact also have fewer than two seats reserved for women. As stated in the law, it is important to note that on average at least two seats should be allocated – meaning not every province will have exactly two seats for women.
(3) Overall, in two parliamentary terms, 14 members of the Wolesi Jirga and 3 members of the Meshrano Jirga have been killed in suicide attacks. In the second parliamentary term, three MPs were murdered. In 2011, Mohammad Hashem Watanwal, an MP from Uruzgan province, was killed. Later that year, Abdul Mutaleb Beg, an MP from Takhar, was assassinated. In 2012, Ahmad Khan Samangani, from Samangan province, was killed.
(4) According to a long-term parliamentary observer, with whom AAN spoke, there had been a vote at one point during the 15th legislative term when Qanoni was the speaker, where the MPs voted to only replace those MPs who die of natural causes. Furthermore, the Analysis of the Electoral Legal Framework of Afghanistan (2006) by Dennis Ennis, discusses options for the replacement of elected members who due to death or other reasons can no longer hold his/her seat. He mentioned a December 2005 Presidential “decree amending the Electoral Law to provide for by-elections when elected members die of unnatural causes,” which AAN was not able to locate and which has also never been put in practice.
(5) Article 84 of the constitution stipulates that Meshrano Jirga members sent through the district councils are elected for three-year terms, those through the provincial councils for a four-year term and those nominated by the president for five-year terms, adding to Afghanistan’s already full electoral calendar. The individuals elected lose their membership in the related council and are replaced by the runners-up in the elections for the respective council.
(6) The final decision in favour of SNTV was taken by President Karzai who, in May 2004 (before the presidential election) effectuated a cabinet decision to that avail. This, however, was preceded by an intervention by then US president George W Bush, as described by Scott Smith, himself a former UN official in Afghanistan, in his book Afghanistan’s Troubled Transition (quoted from the first Indian edition, New Delhi 2012, 160): Then US ambassador Zalmai Khalilzad “intervened brusquely at a meeting with United Nations officials and diplomats in Kabul to declare that he had just spoken to President Bush, who said ‘SNTV is the choice. SNTV is going to happen.’”
The AREU, that had already dissected the SNTV system in detail in this 2004/05 briefing paper, concluded in another 2004 report authored by Andrew Wilder: “SNTV (…) is the wrong system for Afghanistan.” (on p 45)
In a 2012 report, AREU further wrote:
In Afghanistan, the birth of SNTV was initially something of an accident, engendered by a widespread distrust of political parties associated with the Communist and civil war eras, a misunderstanding of the implications of having a single vote for individual candidates in large multi-member constituencies, and a possible strategy on the part of the executive to limit the emergence of organised opposition. In 2004, a provincially-based list PR system was promoted by the UN as the most appropriate for elections to the Afghan Wolesi Jirga, but there was reportedly a misstep in the adoption of the rules when they came before the cabinet. After the UN-crafted proportional electoral system was poorly explained by an Afghan cabinet minister, President Karzai changed the proposed provincially-based list PR system to SNTV by simply pronouncing that voters would select a candidate rather than a party, list or block, and that candidates could not show party affiliation on the ballot. The electoral law decreed in 2004.
Thus announced that voters would choose between individual candidates rather than parties, but still in the multi-member provincial constituencies originally intended for use in the list-PR system. There has also been significant speculation that, while Karzai’s distaste for parties may have been genuine, the administration’s adoption of SNTV (or at least its support of its continued use into 2005 and beyond) was also a strategic calculation aimed at weakening parties’ potential as sources of political opposition.
More information about SNTV technicalities in Afghanistan in this fact sheet jointly written by the UN and one of Afghanistan’s former electoral bodies
(7) Rule 89 of the Rules of Procedures of the Wolesi Jirga – the text of a Bill approved by the House of People shall be submitted to the House of Elders.
Rule 90 – If one House rejects or amends the Bill approved by the other, a Joint Commission composed of an equal number of Members from each House shall be formed to resolve the difference, in accordance with article 100 of the Constitution.
The Standing Committee responsible for the Bill shall propose Members to sit on this Commission and the list of members must be approved by the House in a plenary sitting.
(8) The Counter-Narcotics Commission was included in the Health, Youth, Work and Labour Commission, the Martyrs and Disabled Commission was included in the Nomads, Tribal Affairs and Refugees Commission and the Lower House Commission on MPs’ Rights, Protection and Privileges was included in the Complaints and Petitions Commission.
(9) It is not quite clear by what measure the term was extended. International media claimed that it was done by a presidential decree . However, Afghan media described the process as the president making a statement/declaration/proclamation, the Wolesi Jirga then discussed it and approved it by majority vote.