The Afghan president has unilaterally amended the election law, raising concerns among domestic and international election monitoring bodies. The most disturbing provision of the new law, in the opinion of experts, is the “Afghanization” of the Electoral Complaints Commission (ECC), the institution that caused Hamed Karzai so many headaches during the presidential elections last fall.

Under Karzai’s decree, which was issued during a parliamentary recess, all five commissioners of the ECC will now be drawn from Afghan government bodies; previously, three of the five members were appointed by international organizations. Analysts worry that this will give the Afghan president more control over the ECC, damaging its independence and its ability to rule on electoral violations.

Karzai also boosted the power of the Independent Election Commission (IEC), an all-Afghan body that stood firmly behind Karzai in the long drawn-out aftermath of the fraud-plagues presidential poll. Election observation has also been made more difficult.

“The modifications to the ECC’s structure, as well as the enhancement of the IEC’s power are very worrying,” said Jandad Spinghar, head of the Free and Fair Elections Foundation of Afghanistan (FEFA).

International bodies charged with supporting Afghanistan’s elections seem to have been thrown into confusion by Karzai’s action. Less than two months ago Aleem Siddique, spokesperson for the United Nations Assistance Mission to Afghanistan (UNAMA) made clear that the UN would not unquestioningly support the parliamentary elections.

“We will have to judge our level of engagement depending on progress made in reforming these key institutions ahead of any poll,” he said.

But Nilab Mubarez, another UN spokesperson told Afghanistanvotes.com that UNAMA had not yet formulated its response to the presidential decree.

“We have not yet decided on Karzai’s changes to the election law,” she said. “We are still discussing the issue.”

The changes to the election law come in the wake of a badly flawed presidential election, which took place amid allegations of widespread fraud. The ECC insisted on an investigation, as a result of which nearly one-third of Karzai’s ballots were disqualified, along with smaller numbers for other candidates.

The ECC’s ruling necessitated a runoff between the two frontrunners, Karzai and Dr. Abdullah Abdullah. But Abdullah pulled out shortly before the scheduled date, saying that a fair election was impossible without major changes to the leadership of the IEC.

“I will not participate in the runoff, in order to highlight my protest against the government’s actions and the lack of independence of the IEC,” said Abdullah in his speech announcing his withdrawal from the race.

Two days later, the IEC declared Karzai the winner, giving him 49.67 percent of the vote. The ECC’s count was more modest – closer to 48 percent.

FEFA’s Spinghar believes that it was the ECC’s robust response to the reported fraud in the elections that robbed Karzai of his first-round victory.

“The first round of the elections would never have gone to a runoff if there had not been international commissioners in the ECC,” he said. “The government was able to influence the domestic figures on the commission.”

Now, according to the president’s decree, all five members of the ECC will come from Afghan institutions.

“This harms the transparency of election in the eyes of the people and of monitoring bodies,” said Spinghar. “It was the IEC that should have been changed, not the ECC.”

Parliamentarian and legal expert Kabir Ranjbar is also skeptical of Karzai’s decree.

“People were already distrustful of the IEC,” he said. “They did not think it was efficient or honest. Unfortunately, the president’s changes have increased that distrust.”

Acoording to Ranjbar, the Parliament has not yet come to a conclusion about how to respond to Karzai’s decree. The problem lies in Article 109 of the Afghan Constitution, which prohibits the legislature from including any proposed amendment to the election law in its working agenda in the year prior to scheduled elections.

Parliamentary elections are now slated for September.

But some parliamentarians insist that they have the right to accept or reject the decree in its entirety.

“The president is authorized to issue legislative decrees in the absence of parliament when there is an emergency situation,” said MP Mohammad Sarwar Jawadi. “The decree is supposed to be discussed at the first working session of parliament after the recess.”

Parliament returned to work on February 20, but the decree is not yet on the agenda.

According to Jawadi, there is a political motive behind the changes to the law.

“It was not necessary to amend the election law at this time except for political purposes,” he said. “It is designed to bring the election process under greater control of the government.”

The decree also potentially puts Karzai at odds with the Constitution, said Jawadi. Karzai has specified educational requirements for candidates for office – higher education for presidential hopefuls, and at least a high-school diploma for would-be parliamentarians. But the Constitution, which sets out the requirements for office, specifies no educational minimums for office.

The presidential administration insists that the changes are only to improve transparency and accountability.

“The amendment to the election law is to enable us to conduct a transparent election,” said presidential spokesperson Siyamak Herawi. “We want to Afghanize the process.”

The timing of the elections has also been controversial. According to the Constitution, the present parliament’s mandate expires on the first of Saratan (June 22), and elections should take place at least 30 days prior to this date. But the elections were postponed until September. The IEC said that the decision to delay the ballot was based on a number of issues, such as weather, security concerns and the lack of a budget.

The elections cannot take place without international monetary support. The IEC has estimated that $120 million will be needed, of which they already have approximately $70 million.

This should give international bodies some leverage in pushing for positive change.

Anna Larson, for the Afghanistan Research and Evaluation Unit (AREU) said that modifications should be brought to the structure of the IEC in order to avoid the abuses that occurred during the presidential elections. The independence of the IEC, and the legitimacy of the election process, could only be assured if significant change occurred, she said.

In addition to the nationalization of the ECC, the amendments to the elections law bring important changes to the requirements for office.

Presently, in order to run for president, a person must be a citizen of Afghanistan, a Muslim, born of Afghan parents and holding no foreign citizenship. He or she must have no criminal convictions, and be at least 40 years of age. The candidate must provide a guarantee of 50,000 afghani ($1000) and 10,000 signatures in order to register.

But under the new amendments, a presidential candidate will have to provide 100,000 voters’’ signatures and deposit a guarantee of 250,000,0 afghani ($50,000). He or she must also have at least a Bachelor’s Degree.

“The requirement that a presidential candidate pay 2.5 million afghani means that competent but poor people have no chance,” said FEFA’s Spinghar.

The requirements for parliamentary candidates have also been toughened.

Currently a candidate for the Wolesi Jirga (Lower House) must deposit 10,000 afghani ($200) and submit 300 signatures.  

Under Karzai’s changes, a parliamentary candidate would need 1,000 signatures and 30,000 afghani ($600).

But the change that is most discussed is the nationalization of the ECC.

“This is Karzai’s revenge on the internationals at the ECC,” said Saleh Mohammad Registani, who was Abdullah’s deputy campaign manager.