HERAT --The latest Parliamentary elections have shown that no poll in Afghanistan is going to be without complications. Elections in post-conflict countries always pose challenges, but the crisis now brewing in Afghanistan is rare even among troubled emerging democracies.

The Parliamentary elections held in September were without a doubt the most problematic in Afghanistan so far. The results have now been referred to a special court, ignoring the decisions of the Electoral Complaints Commission (ECC).

The dispute over the elections has been raging since the Independent Election Commission (IEC) announced the final results in late November. The Attorney General’s office, which is accusing many individuals, including election officials, of perpetrating fraud, referred the issue to the Supreme Court. The Court, in turn, recommended that the president establish a special court to adjudicate complaints. President Hamid Karzai agreed, and the court was established in December.

But the legitimacy of the special court is under question. Many wonder whether its decisions will satisfy those who are now protesting the results, or whether it will lead the country to greater instability.

Jamshid Nekjo Azizi, a lecturer in the Political Science Faculty of Herat University, is doubtful about the legitimacy of the special court.

“Articles 69, 78, and 127 of the Constitution mention that a special court shall be formed to adjudicate fraud or abuses committed by the president, Cabinet ministers and/or members of the judiciary,” he said. “The Constitution does not mention anything about a special court to assess electoral challenges.”

A court can also be established by request of the Parliament if the Supreme Court is accused of wrongdoing, explained Azizi.

“According to Article 127 of the Constitution, if one-third of Parliament members ask that the head of the Supreme Court be brought to justice for fraud or abuse, and if Parliament approves this with a two-thirds majority, then the head of the Supreme Court can be dismissed and a special court established to examine the charges.”

But none of that applies here, says Azizi.

“Except from the abovementioned situations, the formation of a special court for any purpose is illegal,” he said.

Based on Article 34 of the Constitution, the IEC is an independent body and has full authority to make any decision about elections in the country; the establishment of a court to examine the IEC’s decisions calls the independence of the electoral body into question, added Azizi.

“The Supreme Court has been playing a key role in the electoral bodies’ activities,” said Feroz Ahmad Zuhori, a student in the Political Science Faculty at Herat University. “The head of the ECC is a member of the Supreme Court. What has he done in the ECC so far that has caused the Supreme Court to recommend a special court?”

The speedy establishment of the special court itself raises questions. A number of cabinet ministers were suspected of corruption over the past few years, but no special court has been formed to bring them to justice. Such actions violate the law, say analysts.

“It seems that the immediate formation of a special court was due to the government’s pressure on the Supreme Court,” said Abdul Qader Kamel, a Herat-based political analyst. “The government wants to bring its favorite candidates to the parliament, even if they did not win the elections.”

Rumors about government pressure intensified when Sediqullah Haqiqi, the head of the special court, warned that the perpetrators of election fraud would be responsible for any unexpected consequences after the court announces its decision.

According to Kamel, Haqiqi’s speech could have two different meanings: one that a change in the list of winning candidates is the court’s top priority, and it wants to blame those who ignored government’s pressure before the announcement of the final results. Secondly, the warning could have been addressed to the IEC, the ECC and some of the winning candidates, alerting then that punishment could be in store.Zarifa Mayaar, a school teacher in Herat, is concerned about the disputes between the electoral bodies and the judiciary.

“It seems that the special court may not resolve this tension; on the contrary, it may deepen it,” she said. “The recent remarks by the head of the special court revealed that there was deep dispute over the issue between the electoral bodies and the judiciary. “

The situation is approaching the danger point, she added.

“It was said that a suitable solution would be found for the electoral dispute before the Attorney General’s office referred the matter to the Supreme Court,” she said. “But this did not happen; instead we had the formation of a special court. This court is in a delicate situation, and the level of protests may increase and transform a relatively calm situation into one of great instability.”

There is, of course, no guarantee that the winning candidates will stay silent; they may organize protests and road blockages if they are removed from the list of winners. The losing candidates as well may have objections to the court’s decision.

Afghanistan’s political opposition, as well as the winning candidates emphasize that the special court has no legal basis. Dr. Abdullah, the leader of the Change and Hope Coalition, does not accept the legitimacy of the special court decision, and says that it was formed under pressure from the government.

The new Parliament was scheduled to begin its work within days, but the special court has not yet issued any rulings. This has delayed the opening of the new legislature until February 22, increasing tensions.

Mayaar, the school teacher, said that it will be very difficult for the special court to adjudicate all elections complaints carefully in such a limited time.

One possible outcome of the court’s activities could be new elections in some of the more problematical provinces, like Ghazni, where all 11 winning candidates were from the Hazara ethnic group, leaving  the Pashtuns who live in some districts of Ghazani and are considered the largest ethnic group of Afghanistan, under-represented.

But new elections could cause serious economic and administrative problems. The lack of security will also be a special difficulty.

Excluding a number of winning candidates would pose another challenge. Those who are excluded may organize protests ad increase tensions. 

Overall, special court’s decision may not solve the current crisis, and as most legal experts say, its verdict may lack legal authority. If the court decides to change or annul the final results of the election, it could prove a major blow to justice and the emerging democratic process in Afghanistan.