January 01, 2015

The Afghanistan Presidential Election Comes to Final Political Solution

John Hardin “Jack” Young

Editor’s Note: Last issue, we inaugurated “Experience at Work,” a column designed to highlight the work of experienced lawyers who have honed their expertise over many years, and Jack Young wrote “Progress in Democracy and the Rule of Law: Evolving Election Standards and the Recent Elections in Afghanistan.” The results of the 2014 presidential election in Afghanistan, held April 5, were not final by the time our Summer issue of Experience was published. Jack has continued his work as a Senior Global Election Dispute Resolution Advisor in Afghanistan for the International Foundation for Electoral Systems, and so we asked him to provide a follow-up article.

 

In my last article, I explored the international standards for fair elections against the backdrop of the first round of the Afghan presidential election and the conclusion of the voting on the second round. Those standards are based on the rule of law expressed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which protect the fundamental rights to vote and to be elected to office. The election of the president of the Islamic Republic of Afghanistan was significant because it was the first civilian transfer of power. The first round of the election was generally peaceful and without significant allegations of fraud, but it did not produce a candidate who received a majority (50% + 1 vote). The result was a second round election between the two leading candidates—Abdullah Abdullah and Ashraf Ghani Ahmadzai.

The presidential election did not end with the balloting in the second round. The two candidates remained locked in a series of challenges, complicated by the disclosure of allegations that the chief executive of the Independent Electoral Commission appeared to have been involved in a conspiracy to commit electoral fraud. The result was a deadlock that was only broken when Secretary of State John Kerry intervened to suggest that the candidates agree to a nationwide audit of all 22,000-plus polling station ballot boxes. This agreement, reached on July 12, 2014, would take until September 19 for the process to conclude when the two candidates agreed to share power. On September 29, Dr. Ghani was inaugurated as president. Dr. Abdullah was appointed chief executive officer—a position not provided for in the Afghan Constitution.

Following the second round, approximately 2,576 complaints were presented to the Independent Electoral Complaints Commission. Significantly, Abdullah’s team only filed a limited number of these complaints (664). He later charged that the results were unreliable because of massive fraud in the voting, including results in particular polling centers that exceeded the population of that center.

The candidates were deadlocked until Secretary Kerry brokered a deal on July 12 that would result in a UN-supervised, nation-wide audit. At the time, the candidates agreed to abide by the outcome. The sparring over the standards for the audit, however, prevented the audit from being fully realized. The audit was an on-again-off-again affair. The candidates, particularly Dr. Abdullah, argued over the standards to be used. This debate was not dissimilar to the debate over standards for reviewing punch cards in the 2000 Florida Bush/Gore dispute.

The lack of finality in the results impacted not only the results of the presidential election, but also the relationship between the United States and Afghanistan. President Karzai had refused to sign a bilateral security agreement that would secure the continuous presence of American troops in Afghanistan. Both candidates had agreed that, upon election, they would sign the agreement with the United States.

Throughout July and August, President Karzai would announce that the results would be announced soon and a new president inaugurated. The inauguration did not occur until late September.

During the audit, the UN was never able to satisfactorily secure the agreement and participation of the candidates in the audit process. The main objector was Dr. Abdullah. This was understandable to many observers of the process because there was a perception that Dr. Abdullah was behind in the total vote count. A rubric of post-election dispute resolution is that the candidate who is behind in the tally needs to expand the scope of any audit/recount and not agree to standards that could restrict the scope of the review. The perceived leading candidate, conversely, wants the audit to be restricted to mimic the election-day tally.

Dr. Abdullah was never able to prove a case for the large-scale invalidation of ballots. His only political option was, thus, to walk away from the audit if he was not ready to concede the election, which he was not going to do. Throughout the summer of 2014, Dr. Abdullah either withdrew from the audit process or threatened to do so. At first, the UN-facilitated audit was stopped until Dr. Abdullah could be cajoled into rejoining by changing the audit criteria. After a series of “walk outs” on August 27, Dr. Abdullah for the last time removed all his observers from the audit. In response, the UN asked Dr. Ghani to remove his observers voluntarily to erase any criticism that the audit was continuing with the participation of only one candidate. The remaining observers were domestic and international observers who had been recruited in numbers not seen since the influx of lawyers in the fall of 2000 in Florida.

In the end, the Independent Electoral Commission validated the vast majority of the results reported on election day, a small number of polling station reports being invalidated or requiring a recount to determine the results.

On September 27, 2014, Dr. Ghani was inaugurated as president. Dr. Abdullah was appointed, by agreement with Dr. Ghani, chief executive officer. President Ghani immediately signed the bilateral security agreement with the United States. The final election results were never announced.

The 2014 Afghan experience, like the 2000 Florida experience, involved the nonviolent transfer of civil authority. In both elections, the process was hampered by the lack of clear and predetermined standards for questioned ballots. In Afghanistan, the audit standards were contentious and never fully agreed upon by the candidates. In 2000, the U.S. Supreme Court found that the failure to adopt and apply standards prior to the November election was fatal to the challenge by Vice President Gore. The lesson learned is that the resolution of post-election disputes requires the adoption of pre-election comprehensive standards that neutral decision makers can apply to resolve electoral disputes without regard to the identity of the parties.

John Hardin “Jack” Young

John Hardin “Jack” Young is a Senior Global Election Dispute Resolution Advisor with the International Foundation for Electoral Systems (IFES), an adjunct professor of international and comparative election law at the William & Mary Law School, and a member of the SLD Council. The views expressed are those of the author and do not represent the views of IFES, William & Mary Law School, or any other organization or entity.