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Afghanistan--2011 FDA Global Electoral Fairness Audit Report
 

Afghanistan--2011 FDA Global Electoral Fairness Audit Report

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2011 FDA Electoral Fairness Audit of Afghan's Islamic Republic electoral system ...

2011 FDA Electoral Fairness Audit of Afghan's Islamic Republic electoral system

FDA auditors gave Afghanistan an overall electoral score of 23.75%. (50% is the minimum passing grade; 100% is the maximum grade.)

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    Afghanistan--2011 FDA Global Electoral Fairness Audit Report Afghanistan--2011 FDA Global Electoral Fairness Audit Report Document Transcript

    • 2011 FDA Global Electoral Fairness Audit of Afghanistan’s Islamic Republic Electoral SystemAfghanistan received an overall failing score of 23.75 percent for electoral fairness. Thescore means that the constitutional and legislative basis for Afghanistan democracy isbordering on significantly more unfair than fair. A passing score is 50 percent. TheAfghanistan score is only 6.25 percent lower than the score for the United States and 67percent lower than the score for France. Out of 27 countries, Afghanistan ranks 17 forelectoral fairness. Although Afghanistan democracy has elements of electoral fairness suchas freedom of expression and assembly, advanced political rights for women and disabledpersons, and regulation of mass media during the electoral period, these elements are morethan offset by unfair elements. Within the core of Afghanistans political system are severefavoring of wealthy Afghans and the privileged, educated Afghan tier of society. Oppositionparties do not have a reasonable chance of forming government. The FDA believes based onits research and audit that the Afghan political system is set up to keep the Karzai regime inpower, while on the surface may appear to be free, equal, and fair. Consequently, the FDAconcludes that the Afghan political system is authoritarian within the shell of democracy. Electoral Fairness Audit Completed October 11, 2011. Updated October 13, 2011.
    • About the Foundation for Democratic Advancement:The Foundation for Democratic Advancement ("FDA")s mission is to advance fair andtransparent democratic processes wherever elections occur. The FDA believes that fairerelectoral systems and a more informed public will help ensure the election of candidates whotruly represent the will of the people. The FDA fulfills its mission by performing detailedelectoral audits on political candidates and parties to inform the public, objectively andimpartially, about their electoral choices. Also, the FDA audits electoral legislation in terms offairness and equity, and conducts ground level assessments of democratic processes. (For moreinformation on the FDA visit: www.democracychange.com)Purpose of Electoral Fairness Audit:The purpose of the FDA’s electoral fairness audit (the “Audit”) is to determine a grade andranking for electoral fairness in Afghanistan at the presidential, Wolesi Jirga, and Meshrano Jirgalevels of government. This Audit is part of the FDA’s global audit of electoral fairness involvingall countries which hold political elections. The FDAs goal is to give the citizens of Afghanistanan informed, objective perspective of the fairness of the Afghan Islamic Republic electoralsystem.The views in this electoral fairness audit are the views of the FDA only. The FDA’s members andvolunteers are in no way affiliated with the Afghan Independent Electoral Commission, or theJoint Electoral Management Body, or any of the Afghan registered/non-registered politicalparties. The Audit is an independent assessment based on objectivity, transparency and non-partisanship. The FDA assumes no responsibility or liability for any errors in the calculation ofits audit results or inaccuracies in its research of relevant Afghan legislation.Methodology of the Electoral Fairness Audit:The FDA uses the methodology of more reasonableness which was created by FDA founder andexecutive director, Stephen Garvey. The methodology focuses on facts themselves for fairnessand unfairness, and their comparative numerical value. To determine the correct numerical valuefor facts, FDA auditors are guided by matrices which show the numerical value of establishedfacts and FDA scoring scales for fairness and unfairness.The FDA focuses on four key areas of electoral fairness:1) Laws and regulations on the political content of media including newspapers, broadcasters andonline media before, during, and after elections;2) Laws and regulations on the candidates’ and parties’ influence before, during and afterelections, such as national televised debates, restrictions on candidate nominations, partyregistration requirements, etc.;3) Laws and regulations on electoral finance, such as party and campaign donation limits, thirdparty spending limits etc.; and Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan
    • 4) Laws and regulations on voter say before, during, and after an election. The FDA auditorsdetermine the fairness of Afghan laws and regulations for voter say in the media, at the pollingbooth, through electoral finance and constitutional laws etc.The FDA audits these four areas of electoral fairness because, in our opinion, they are oftenignored or overlooked by the international community in determining electoral fairness.Moreover, these four areas cover broad aspects of the electoral process in which fairness couldbe compromised significantly. The FDA acknowledges that electoral laws and regulations maynot necessarily correspond to the implementation of those laws and regulations or the public’sresponse to them. The implementation and response could be positive or negative, in terms ofelectoral fairness. Nevertheless, laws and regulations provide the foundation for democracy,framework for the electoral system, and an indication of electoral fairness. Also, a countrysconstitutional and electoral laws are part of the reality of its democracy. A further study whichtracks the actions of mainstream media and the enforcement or non-enforcement of electorallaws and regulation, for example, would provide a more reliable overall determination ofelectoral fairness.The FDA researched current Afghan legislation, in relation to the four areas of electoral fairnessbeing audited. Following which, the FDA audited the research results via the FDA electoral auditteam and established FDA matrices and scoring scales. The scores and the reasons for them arerecorded.Weighting and Scoring:Overall, the FDA scoring is guided by an inherent valuation of the concepts of soundness andrelevancy. Each area of electoral fairness has a score range between 0 and 10, and each area iscounted equally. The FDA auditors allow for overlap of electoral fairness areas, due to theinterconnectedness of the areas. For example, electoral finance will be factored into the score forvoter say and candidate and party influence if it is relevant to these areas. The total averagedscore will provide an indication of the electoral fairness in Afghanistan.The FDA electoral audit team deliberated on the research on each area of electoral fairness, andthen attempted to reach consensus on the scores. When no consensus could be reached, theindividual scores of the team were averaged. The final score for each area must be supported bymore sound reasons and correspond to the established FDA matrices and scoring scale. There is aminimum quorum of five auditors and maximum of nine auditors. Any auditors in excess of nineact as observers. During the deliberation on each electoral fairness section, observers are givenan opportunity to share comments and/or questions.FDA Researchers:Mr. Stephen Garvey, FDA founder and executive director, bachelor degree in Political Science(University of British Columbia) and Masters degree in Environment and Development(University of Cambridge). Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan
    • FDA Electoral Fairness Audit Team:Chief Electoral Auditor:Mr. Stephen Garvey, FDA founder and executive director, bachelor degree in Political Science(University of British Columbia) and Masters degree in Environment and Development(University of Cambridge).Electoral Auditors:Mr. Juan Baudrand, FDA volunteer, 4th year major in Political Science (University of Calgary)and masters degree in Sociology (University of Concepcion).Mr. James Cheung, FDA researcher and bachelor degree in Commerce (University of Calgary).Ms. Genevieve Gosselin-Tardif, FDA volunteer and lawyer.Mr. Dale Monette, FDA director of finance and bachelor degree in Commerce (University ofSaskatchewan).Mr. Joseph Sandler, FDA volunteer and bachelor degree in International Relations (University ofCalgary).Ms. Lindsay Tetlock, FDA researcher, bachelor degree in International Relations and mastersdegree in Historical Studies (University of Calgary).Mr. Geoff Thiessan, FDA researcher and editor, bachelor degree in English Literature (Universityof Calgary), former freelance reporter, and Surface Land Administrator.Mrs. Liza Valentine, FDA design consultant and researcher, and masters degree in Architecture(University of Calgary).Report Writer:Mr. Stephen Garvey, FDA founder and executive director, bachelor degree in Political Science(University of British Columbia) and Masters degree in Environment and Development(University of Cambridge).© 2011, Foundation for Democratic AdvancementAll rights reserved.Foundation for Democratic Advancement728 Northmount Drive NWPO Box 94Calgary, AlbertaCanada, T2K 1P0info@democracychange.com Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan
    • Table of Contents:Political Background on Afghanistan 7Chapter 1: Political Content of Media 14Chapter Summary 14Research Excerpts 14Score 25Rational 25Chapter 2 Equality of Political Candidate and Party Influence 28Chapter Summary 28Research Excepts 28Score 44Rational 44Chapter 3: Equality of Electoral Finance 48Chapter Summary 48Research Excerpts 48Score 52Rational 52Chapter 4: Equality of Voter Say 54Chapter Summary 54Research Excerpts 54Score 62Rational 62Chapter 5: Overall Audit Results 65
    • Chapter 6: Analysis 66Chapter 7: Conclusion 68Chapter 8: Recommendations 69References: 70Appendix: FDA Global Audit Results 71
    • Political Background on AfghanistanAfghanistan adopted a new Constitution on January 4, 2004, which went into event on the sameday.The new bicameral parliament encompasses the "House of the People" (lower house, WolesiJirga) and the "House of the Elder" (upper house, Meshrano Jirga).In the name of God, the Merciful, the CompassionatePreambleWe the people of Afghanistan:1. With firm faith in God Almighty and relying on His lawful mercy, and Believing in the Sacredreligion of Islam,2. Realizing the injustice and shortcoming of the past, and the numerous troubles imposed on ourcountry,3. While acknowledging the sacrifices and the historic struggles, rightful Jehad and justresistance of all people of Afghanistan, and respecting the high position of the martyrs for thefreedom of Afghanistan,4. Understanding the fact that Afghanistan is a single and united country and belongs to allethnicities residing in this country,5. Observing the United Nations Charter and respecting the Universal Declaration of HumanRights,6. For consolidating national unity, safeguarding independence, national sovereignty, andterritorial integrity of the country,7. For establishing a government based on peoples will and democracy,8. For creation of a civil society free of oppression, atrocity, discrimination, and violence andbased on the rule of law, social justice, protection of human rights, and dignity, and ensuring thefundamental rights and freedoms of the people,9. For strengthening of political, social, economic, and defensive institutions of the country,10. For ensuring a prosperous life, and sound environment for all those residing in this land,11. And finally for regaining Afghanistans deserving place in the international community,Have adopted this constitution in compliance with historical, cultural, and social requirements ofFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 7
    • the era, through our elected representatives in the Grand Council [Loya Jirga] dated 14 Jaddi1382 in the city of Kabul.Chapter I The StateArticle 1 [Islamic Republic]Afghanistan is an Islamic Republic, independent, unitary and indivisible state.Article 2 [Religions](1) The religion of the state of the Islamic Republic of Afghanistan is the sacred religion ofIslam.(2) Followers of other religions are free to exercise their faith and perform their religious riteswithin the limits of the provisions of law.Article 3 [Law and Religion]In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion ofIslam.Article 4 [Sovereignty, Ethnic Groups, Citizenship](1) National sovereignty in Afghanistan belongs to the nation that exercises it directly or throughits representatives.(2) The nation of Afghanistan consists of all individuals who are the citizen of Afghanistan.(3) The nation of Afghanistan is comprised of the following ethnic groups: Pashtun, Tajik,Hazara, Uzbak, Turkman, Baluch, Pashai, Nuristani, Aymaq, Arab, Qirghiz, Qizilbash, Gujur,Brahwui and others.(4) The word Afghan applies to every citizen of Afghanistan.(5) No member of the nation can be deprived of his citizenship of Afghanistan.(6) Affairs related to the citizenship and asylum are regulated by law.Article 5 [Territorial Integrity]Implementation of the provisions of this constitution and other laws, defending independence,national sovereignty, territorial integrity, and ensuring the security and defense capability of thecountry, are the basic duties of the state.Article 6 [Purposes]The state is obliged to create a prosperous and progressive society based on social justice,protection of human dignity, protection of human rights, realization of democracy, and to ensurenational unity and equality among all ethnic groups and tribes and to provide for balanceddevelopment in all areas of the country.Article 7 [International Law](1) The state shall abide by the UN charter, international treaties, international conventions thatAfghanistan has signed, and the Universal Declaration of Human Rights.(2) The state prevents all types of terrorist activities, production and consumption of intoxicants(muskirat), production and smuggling of narcotics.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 8
    • Article 8 [State Policy]The state regulates the policy of the country on the basis of preserving the independence,national interests, territorial integrity, non-aggression, good neighborliness, mutual respect, andequal rights.Article 9 [Natural Resources](1) Mines, underground resources are properties of the state.(2) Protection, use, management, and mode of utilization of the public properties shall beregulated by law.Article 10 [Private Investments]The State encourages and protects private capital investments and enterprises based on themarket economy and guarantees their protection in accordance with the provisions of law.Article 11 [Trade]Affairs related to the domestic and external trade shall be regulated by law in accordance withthe needs of the national economy and public interests.Article 12 [Bank](1) Da Afghanistan Bank is the central and independent bank of the state.(2) Issuance of currency, and formulation and implementation of monetary policy of the countryare the mandates of the central bank in accordance with law.(3) The central bank shall consult with the economic committee of the House of Representatives[Wolesi Jirga] in matters related to the printing of money.(4) Structure and operation of this bank shall be regulated by law.Article 13 [Economy]The state shall formulate and implement effective programs for development of industries,growth of production, increasing of public living standards, and support to craftsmanship.Article 14 [Farming, Housing](1) The state shall design and implement within its financial resources effective programs fordevelopment of agriculture and animal husbandry, improving the economic, social and livingconditions of farmers, herders, settlement and living conditions of nomads.(2) The state adopts necessary measures for housing and distribution of public estates todeserving citizens in accordance within its financial resources and the law.Article 15 [Environment]The state is obliged to adopt necessary measures for safeguarding forests and the environment.Article 16 [Languages](1) From among the languages of Pashtu, Dari, Uzbeki, Turkmani, Baluchi, Pashai, Nuristani,Pamiri (alsana), Arab and other languages spoken in the country, Pashtu and Dari are the officiallanguages of the state.(2) The Turkic languages (Uzbaki and Turkmen), Baluchi, Pashai, Nuristani and Pamiri (alsana)are -- in addition to Pashto and Dari -- the third official language in areas where the majorityspeaks them. The practical modalities for implementation of this provision shall be specified byFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 9
    • law.(3) The state adopts and implements effective plans for strengthening, and developing alllanguages of Afghanistan.(4) Publications and radio and television broadcasting are allowed in all languages spoken in thecountry.Chapter III The PresidentArticle 60 [Head of State, Vice Presidents](1) The President is the head of state of the Islamic Republic of Afghanistan, and conducts hisauthorities in executive, legislative, and judiciary branches in accordance with the provisions ofthis Constitution.(2) The President shall have two Vice Presidents, one first and one second.(3) The candidate to the Presidency on his or her candidacy shall declare the name of the VicePresidents to the nation.(4) The Vice President in the absence, resignation, and or death of the President, acts inaccordance with the provisions of this constitution.Article 61 [Direct Election](1) The President is elected by receiving more than 50% of the votes cast through free, general,secret, and direct voting.(2) The presidential term is expired at the first of Jawza of the fifth years after the elections.(3) Elections for the new president are held within thirty, to sixty days before the end of thepresidential term.(4) If none of the candidates succeeds to receive more than 50% of the votes in the first round, arun-off election shall be held within two weeks.(5) In this round, only two candidates with the highest number of votes will participate.(6) In the run-off, the candidate who gets the majority of the votes shall be elected as thePresident.(7) In case of death of one of the candidates during the first or second round, after the electionsor prior to the announcement of the results of elections, new elections shall be held in accordancewith the provisions of law.(8) The elections for the post of president shall be held under the supervision of the IndependentCommission supervising of the Elections.(9) This Commission shall be established to supervise all elections and referendums in thecountry, in accordance with the provisions of law.Article 62 [Qualifications](1) Presidential candidates should posses the following qualification:-- Should be citizen of Afghanistan, Muslim and born of Afghan parents, and should not havecitizenship of another country.-- On the day of becoming a candidate, his age should not be less than forty years.-- Should not have been convicted of crimes against humanity, criminal act, or deprivation of thecivil rights by a court.(2) No one can be elected as president for more than two terms.(3) The provision of this article is applied to the Vice Presidents as well.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 10
    • Article 63 [Oath of Allegiance]The President-elect, prior to resumption of his/her duties, performs the following oath ofallegiance in the presence of members of the National Assembly and the chief justice:"In the name of Allah, the Merciful, the CompassionateIn the name of God Almighty, in the presence of you representatives of the nation of Afghanistan,I swear to obey and safeguard the provisions of the sacred religion of Islam, to observe theConstitution and other laws of Afghanistan and supervise their implementation; to safeguard theindependence, national sovereignty, and the territorial integrity of Afghanistan and thefundamental rights and interests of the people of Afghanistan, and with the assistance of Godand the support of the nation, to make great and sincere efforts for the happiness and progress ofthe people of Afghanistan."Chapter IV The GovernmentArticle 71 [Ministers](1) The government consists of the ministers who work under the Chairmanship of the President.(2) Ministers are appointed by the President and shall be introduced for approval to the NationalAssembly.Article 72 [Qualifications]The person who is appointed as the Minister, should have the following qualifications:-- Must have only the citizenship of Afghanistan. Should a nominee for a ministerial post alsohold the citizenship of another country, the House of Representatives [Wolesi Jirga] shall havethe right to confirm or reject his or her nomination.-- Should have higher education, work experience and, good reputation.-- His age should not be less than thirty-five.-- Should not have been convicted of crimes against humanity, criminal act, or deprivation ofcivil rights by a court.Article 73 [Incompatibility](1) The Ministers can be appointed from within and without the National Assembly.(2) If a member of the National Assembly is appointed as a minister, he loses his membership inthe National Assembly, and is replaced by another person in accordance with the provisions oflaw.Article 74 [Oath of Office]Prior to taking office, the minister perform the following oath in the presence of the President:"In the name of Allah, the merciful and compassionate:I swear in the name of God Almighty to support the provisions of the sacred religion of Islam,follow the Constitution and other laws of Afghanistan, protect the rights of citizens, andsafeguard the independence, territorial integrity and national unity of Afghanistan, and considerGod Almighty present in performing all my responsibilities, and honestly perform the dutiesassigned to me."Article 75 [Duties of the Government]The government has the following duties.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 11
    • -- Execute the provision of this Constitution, other laws, and final orders of the courts.-- Protect the independence, defend the territorial integrity, and safeguard the interests anddignity of Afghanistan in the international community.-- Maintenance of public law and order and elimination of administrative corruption.-- Prepare the budget, regulate financial affairs, and protect public wealth.-- Devise and implement programs for social, cultural, economic, and technological progress.-- Report to the National Assembly at the end of the fiscal year about the tasks accomplished andabout the main plans for the new fiscal year.-- Perform other duties as recognized by this Constitution and other laws to be duties of thegovernment.Article 83 [House of Representatives](1) Members of the House of Representatives [Wolesi Jirga] are elected by the people throughfree, general, secret, and direct elections.(2) Their mandate ends on the 1st of Saratan of the fifth year after the elections, and the newassembly starts its work.(3) The election of the members of the House of Representatives [Wolesi Jirga] shall be heldwithin 30 to 60 days before the expiry of the term of the House of Representatives [WolesiJirga].(4) The number of members of the House of Representatives [Wolesi Jirga], proportionate to thepopulation of each region, shall be not more than two hundred and fifty.(5) Electoral constituency and other related issues shall be determined by election laws.(6) In the election law measures should be adopted for so the election system shall providegeneral and just representation for all the people of the country, and at least two female delegateshould be elected from each province.Article 84 [Senate](1) Members of the Senate [Meshrano Jirga] are elected and appointed as follows:(2) From among the members of each provincial council, the respective council elects one personfor a period of four years.(3) From among the district councils of each province, the respective councils elect one personfor a period of three years.(4) The President from among experts and experienced personalities -- including tworepresentatives from the disabled and impaired and two representatives from the Kochis --appoints the remaining one-third of the members for a period of five years.(5) The president appoints 50% of these people from among women.(6) A person, who is appointed as a member of the Senate [Meshrano Jirga], shall relinquish hismembership in the respective council, and another person replaces him in accordance with thelaw.Article 85 [Qualifications](1) A person who is nominated or appointed as a member of the National Assembly should havethe following qualifications in addition to those considered by voters.(2) Should be the citizen of Afghanistan, or has obtained the citizenship of the state ofAfghanistan at least ten years before becoming a candidate.(3) Should not have been convicted by a court for committing a crime against humanity, a crime,Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 12
    • or sentenced of deprivation of his civil rights .(4) Members of House of Representatives [Wolesi Jirga] should be Twenty Five years old at thedate of candidacy, and members of the Senate [Meshrano Jirga] should be Thirty Five years oldat the date of candidacy or appointment.Chapter VI Grand Council [Loya Jirga]Article 110 [Composition, Participation](1) Grand Council [Loya Jirga] is the highest manifestation of the people of Afghanistan.(2) Grand Council [Loya Jirga] consists of the following:-- Members of the National Assembly.-- Chairpersons of the provincial, and district councils.(3) The ministers, Chief Justice and members of the Supreme Court, can participate in thesessions of the Grand Council [Loya Jirga] without the right to vote.Article 111 [Powers]Grand Council [Loya Jirga] is convened in the following situations:-- To take decision on the issues related to independence, national sovereignty, territorialintegrity, and supreme interests of the country.-- To amend the provisions of this Constitution.-- To prosecute the President in accordance with the provisions of Article 69 of this Constitution.Article 112 [Chairperson]The Grand Council [Loya Jirga] in its first session elects from among its members a chairperson,a deputy-chair, and a secretary and an assistant secretary.Political Parties LawArticle 3The political system of the State of Afghanistan is based on the principles of democracy andpluralism of political parties.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 13
    • Chapter One: Political Content of MediaChapter one will focus on the research and audit results of Afghan laws and regulations withrespect to the political content of media, including newspapers, broadcasters and on-line media,before, during and after elections.Chapter Summary: Afghanistan received a score of 50 percent for the political content ofmedia. The score means that the regulation of media political content is balanced between fairand unfair. FDA auditors deliberated for about one hour over Afghans media laws andregulations. One the hand, during the election period, Afghanistan has extensive laws andregulations on the impartiality and fairness public and private medias political content, and whileon the other hand, Afghanistan is deficient in laws and regulations on the medias politicalcontent outside of the election period. The election period is at least 120 days, which means thenon-election period is at least 1340 days (i.e. elections every four years). FDA auditors agreedthat the election period is much more significant in terms of impact on political content due tovoters being more acutely aware, and yet the length of the non-election period is significantlymore than the election period. The lack of media restrictions outside the election period meansthat the media can be partisan and controlled by a wealthy minority, which over 1340 days canmold voter perspectives.Document Excerpts:The following excerpts were identified by the FDA researchers as relevant. The FDA researchersmade some excerpts bold to emphasize high relevance:Afghanistan ConstitutionArticle 34 [Expression, Press, Media](1) Freedom of expression is inviolable.(2) Every Afghan has the right to express his thought through speech, writing, orillustration or other means, by observing the provisions stated in this Constitution.(3) Every Afghan has the right to print or publish topics without prior submission to thestate authorities in accordance with the law.(4) Directives related to printing house, radio, television, press, and other mass media, willbe regulated by the law.The Mass Media Law of Afghanistan, 2006Activities of Foreign Media OrganizationsArticle Eight:(1) Afghan nationals are entitled to establish mass media referred to in Article3 according to provisions of this law.(2) Foreign diplomatic missions in Afghanistan can print and distribute theirnews bulletins according to diplomatic norms.(3) Branch offices of international or intergovernmental organizations can runFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 14
    • periodical or non-periodical publications dealing with their fields ofactivities with the agreement of the Ministry of Youth and Culture.(4) Foreign NGOs established in accordance with law can run periodical andnon-periodical publications within their professional fields after receivingpermission from the Ministry of Youth and Culture .The publications are tobe edited by Afghan Nationals.Chapter NineMiscellaneous provisionsForeignArticle Thirty-Sven:Foreign nationals can make cinematographic films in Afghanistan providedthat they get prior permission from the Ministry of Youth and Culture.Information about Changes in ConstitutionArticle Thirty-Eight:(1) Those responsible for mass media publishing firms, organizations fortraining journalists, translation bureaus, printing houses, and publicity andadvertising agencies are obliged to inform the Ministry of Youth andCulture about all kinds of changes in their type of activity , address andother characteristics referred to in this law or enshrined in their ownconstitutions.(2) Those responsible for mass media publishing firms organizations fortraining journalists, translation bureaus, printing houses , and publicity andadvertising agencies are obliged to inform the Ministry of Youth andCulture at the beginning of each year about the continuation ordiscontinuation of their activities for recording purposes of the ministry .Obligations of Representatives of Foreign News Agencies and MediaArticle Thirty-Nine:(1) Representatives of foreign news agencies and mass media intending tooperate inside Afghanistan are obliged to get work permits the MediaRelations Department Ministry of Foreign Affairs of the Islamic Republic ofAfghanistan and inform in writing the Ministry of Youth and Culture aboutthe names of the related countries in question, kind of activities, durationthereof and the venue of operations.(2) News agencies and mass media referred to in paragraph (1) of this articleare obliged to observe the provisions of article 31.Registration of Book, Pamphlet and PublisherArticle Forty:Books or pamphlets after being published by the publisher are to beregistered with the Ministry of Youth and Culture and their proprietors areobliged to send two copies each from the books and pamphlets to the Ministryof Youth and Culture and to the Public Library.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 15
    • Paying TaxArticle Forty-One:The revenues of mass media are taxable according to tax laws.Article Thirty-One:(1) In order to better organize the affairs of the Bakhtar Information agency, athree-person commission will be created for 4 years composed of onelawyer, one professional engineer and one journalist.(2) The commission referred to in paragraph (1) of this article will have thefollowing powers:1. Proposing the appointment or dismissal of the general director of the Bakhtar InformationAgency (BIA) to the president of the Republic.2. Confirming those responsible for department of the BIA proposed by its general director.3. Preserving the independence, impartiality and professional status of theagency.4. Supervising the financial, administrative and dissemination affairs of the agency.5. Preparing the budget proposal.6. Approving the editorial objectives of the agency.7. Submitting the annual report on activities of BIA to the Media High Council.8. Discussing with the government, civil organizations and donors to attractassistance.9. Supervising implementation of the dissemination policy of the agency determined by theMedia High Council.(3) Members of the BIA Commission are entitled to appropriate salaries paid from the budget ofthe Ministry of Youth and Culture.Regulation of Election Campaigns:Use of Resources during Electoral CampaignsArticle Six:1) To raise public awareness, Public Media (TV, radio, and print media) shall fairly andimpartially broadcast and publish candidates’ platforms, comments, and objectives duringelectoral campaigns. Moreover, the State Media shall broadcast and publish the platforms,comments and objectives of the candidates in conformity with the designated timeline ofthe IEC fairly and impartially.2) No candidate shall use public possessions and properties during electoral campaignsunless anauthorized authority provides equal facilities to all candidates.Election Law:Article 50Fair and Neutral Publication and Dissemination of Ideas(1) For the purpose of public information during the electoral campaign period, themass media (radio, television, and the press) shall publish and disseminate theplatforms, views and goals of the candidates in a fair and unbiased manner, inaccordance with the Code of Conduct established by the Commission.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 16
    • (2) Candidates shall have access, to the extent possible, to the media. For thepurpose of public information during electoral campaign period, state-run mediashall publish and disseminate, as agreed with Commission, the platforms, views,and goals of the candidates in a fair and unbiased manner.(3) State-owned media shall institute, as necessary, goals, policies and proceduresto ensure fair coverage of the elections and implement the provisions of subarticles (1) and (2).Article 51Media Commission(1) The Commission shall establish, at least 60 days prior to the election date, aMedia Commission (MC). The MC shall monitor fair reporting and coverage ofthe electoral campaign period and shall deal with the complaints concerning anybreaches of fair reporting or coverage of political campaign, or other violations ofthe Mass Media Code of Conduct. Appeals, may be lodged with the Commission.(2) The composition, responsibilities, and authorities of the MC shall be determined by theCommission.Mass Media Code of Conduct:MASS MEDIA CODE OF CONDUCTFreedom of expression, including the constitutional right to receive and impart information, is aprerequisite for free and fair elections. In order to enable citizens to make informed anddemocratic choices, the Mass Media has a heightened responsibility to provide accurate andimpartial information to the public throughout the electoral process. For these reasons, in itscoverage and reporting during election periods the Mass Media shall comply with this Code ofConduct and the Regulations issued by the Joint Electoral Management Body (JEMB), inaccordance with Article S6 and 5 of the Electoral Law, and other relevant provisions of theConstitution of Afghanistan and the Law on Mass Media.The Mass Media plays an essential role in the democratic process. It is imperative that they beafforded the highest level of access to election-related events, access to information, andprotection from all forms of harassment and for intimidation as reasonably possible at all stagesof the electoral process. in accordance with the Law on Mass Media and any other Regulation,Procedure or Guideline issued by the JEMB.The legal and ethical standards described in this Code of Conduct are intended to guide theactivities of members of the Mass Media during the entire electoral process from beginning toend, including candidate nomination, registration, political campaigning, polling, and counting.All members of the Mass Media must obey these standards and implement them with commonsense and good faith. Individuals may be sanctioned by the Media Commission for violations ofthis Code of Conduct.Members of the Mass Media:l. Shall enjoy the fundamental right of freedom of expression, association, assembly, andmovement so as to participate in the registration, political campaign, and election processes.2. Shall comply with the Constitution, the Law on Mass Media, all electoral laws, and all otherFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 17
    • laws of Afghanistan, including Regulations, and Procedures issued by the JEMB and the JEMBSecretariat.3. Shall not broadcast or print any information likely to incite violence, or provoke hatred, ordiscrimination on the basis of race, ethnicity, language regional origins, class, gender, andreligion in connection with the election and other electoral activities.4. Shall seek the truth and provide fair, balanced, accurate and impartial reporting that isnot misleading to the public.5. Shall ensure that information on the electoral process is widely disseminated.6. Shall not knowingly publish, broadcast, distribute any matter or thing in relationto the electoral process which the person knows to be false or does not believe to be trueand which is intended to mislead or deceive a person in relation to the free exercise of hiselectoral right.7. Shall not knowingly publish, broadcast, distribute any defamatory statement in relationto the personal character or conduct of a candidate in the election and intended toprejudicial affect the prospects of that candidate at the election.8. Shall provide equitable treatment to all political advertisers.9. Shall report facts and figures, and clearly distinguish between facts and rumors.10. Shall label opinions as opinions.11. Shall avoid conflicts of interest or the perception of conflict of interest.12. Shall not accept or demand gifts, special treatment or favors from nominatedcandidates, politicians, political parties, and their agents in exchange for coverage.13. Shall correct in a prompt and prominent manner all errors of fact, as well as error ofomission, and provide a right of reply to any individual or group that is the subject of anallegation.14. Shall comply with orders of the Electoral Complaints Commission and the MediaCommission, including orders to broadcast and print a correction or retraction.[Code of Conduct does not establish broad and balanced electoral coverage. Only focuses onreporting.]Law on Mass Media:Chapter OneGeneral ProvisionsArticle One:This Law has been enacted in accordance with Article 34m of the Constitution and Article 19"‘of the International Covenant of Human Rights for ensuring the protection of freedom of thoughtand speech and for regulating the activities of mass media in the country.Article Two:The aims of this law are as follows:1. Promote and support the right of freedom of thought and speech, defend the rights ofjournalists and ensure the ground for their free operation.2. Promote and develop free, independent and pluralistic media.3. Provide suitable environment for free expression of views and feelings of citizens throughspeech, writing, drawing, picture, recording, acting, movement and other scientific, artistic,literary as well as printing and broadcasting.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 18
    • 4. Observe the right of freedom of speech and media as enshrined in internationalhuman rights convention, taking into account the true religion of Islam.5. To support the sound development process of mass media and enable it to becomean effective means for promoting the culture in the country and reflect the public opinionhonestly and usefully.Article Three:The following terms of this law shall mean as follows:1. Media: Means or instrument of dissemination of information using the followingtools:0 Visual: drawings, picture, postcard and poster.v Audio-video (Broadcast): radio, television, cable network, picture mobile.Information: Information and Press AgenciesPress: pictures and letters printed in a way conveying a meaning or picture and includes all massmedia such as daily newspaper, gazette, magazine, booklet, book, preaching outlet as well speechand statement.Mass Media is divided into the following categories in this law:State-run mass media: The media that belong to the government offices and are funded andequipped by them.Organizational mass media: The media that belongs to political, economical, social and culturalorganizations and are funded and equipped by them.Journalist: is a professional person whose job is to seek, obtain and publish information throughnews media.Printing House: Economical, technical and incorporeal organization in which daily newspapers,magazines, books, newspapers, books, gazettes, announcements, posters and postcards arepublished.Printer: Real or incorporeal person who, by ownership or representation, is the actual in chargeof printing house affairs.Publisher: Real or incorporeal person who is authorized to print and publish nonperiodic works.Concessionaire Real or incorporeal persons who are engaged in printing and publishing ofperiodic print media and establishing radio, television, cable network, news agency and printhouse.Editor-in-chief: is a person who is the actual in-charge of managing the affairs related to themedia stated in paragraph 8 of this article.Publishing: is a process through which the message of print, broadcast as well as audio and videomedia is conveyed to the public.Radio: is an audio mass media instrument.Television: is an audi0—vide0 (broadcast) mass media instrument.Cable Network: is a mass media of audio-video (broadcast), which broadcasts differentinternational information, educational, cultural and entertainment programs to the public throughsatellite connection.Chapter TwoRights and ObligationsArticle Four:1. Every person has the right to freedom of thought and speech. This right includesFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 19
    • seeking, obtaining and dissemination of information and views without interference andrestraints by government officials, including freedom of expression and broadcast,dissemination and seeking of information.2. The government shall support and strengthen the freedom of mass media. No real orincorporeal person including the government and government officials can interdict,prohibit, censor or limit the activities of mass media or interfere in the affairs of massmedia through other means. The Media Evaluation Commission enshrined in Article 42 ofthis law is an exception to this provision.Article Five:Every person has the right to seek and obtain information. The government shall providethe information sought by citizens, except the information sought is a military secret thatits disclosure endangers the national security and interests.Article Six:l. Journalists shall come under legal protection while carrying out their professional activitiesincluding publishing reports and critique views.2. Journalists shall have the right to avoid disclosing their source of information, or otherwise anauthoritative court issues an order thereof.Article Seven:To defend their class interests the journalists and other members of mass media can establishindependent associations according to provisions of this law.Article Eight:1. According to the article (3) of this law the citizens of the country can establish means ofmass media.2. Foreign political agencies, international organizations and their representatives inAfghanistan can print and publish news bulletin, according to diplomatic norms and afterobtaining the permission of ministry of information and culture.Chapter ThreePrint MediaArticle Nine:l. The citizen of the country, political parties, registered national organizations andforeign emigrants can, according to this law and without prior permission, establish printmedia. Newspaper, periodic publication, and other print media can be established withoutprevious permission.2. The publications whose circulation is less then (200) number shall not be subjectto the provision of article (13) and (28) of this law and shall not need to obtain prior permissionand registration.Article Ten:The founder of a print media, upon registration, shall be obliged to provide the followinginformation to the Ministry of Information and Culture:(1) Complete identification details and residence address of the applicant.(2) The name and the place/ location of the publication.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 20
    • (3) The language in which the publication is published.(4) The source of funding and the amount of budget.Article Eleven:Print media shall have its name, specified address, location of printing, the name ofconcessionaire, editor-in-chief and the date of publication.Article Twelve:The identity and the signature of author shall have to exist in the original version.Article Thirteen:According to the provision of this law, every print media shall have a concessionaire and aneditor-in-chief.Chapter FourPrinting HouseArticle Fourteen:Citizens, political parties and government offices shall have the right to establish printinghouses, provided that it has obtained the permission of the Ministry of Information andCulture.Article Fifteen:In view of the provisions of Article 24 of this law, the applicant of license for establishingprinting house shall present the following information to Ministry of Information and Culture:1. Full identity and residential domicile.2. Name and location of the printing press.3. Language that is used for printing.4. Type, kind of machinery and printing equipment.5. Source and amount of budget invested in the establishment of the printing house.Article Sixteen:The transfer of the printing house ownership is permissible. The person to whom the ownershipis transferred shall re-adhere to directives stated in article 24 of this law.Article Seventeen:Without a concessionaire and editor-in-chief, operation of printing house shall not bepermissible.Article Eighteen:Citizens, political parties, and social organizations that do not have their own printinghouse, shall have the right to use private and state-run printing house in accordance withfinancial and accounting regulations of the concerned printing house.Chapter FiveAudio -Visual (Broadcast) MediaArticle Nineteen:Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 21
    • Citizens, political parties, social organizations and other state-run and privateorganizations shall have the right to establish audio - visual media in accordance with theprovision of this law.Article Twenty:The National Commission of Radio & Television Broadcast, which shall be comprised of fivemembers, shall be established for better regulating of audio and visual media. Chairperson andmembers of the National Commission of Radio & Television Broadcast shall be appointed by thePresident for a period of two years, the commission’s tenure can be extended as required.Article Twenty-One:(1) The National Commission of Radio & Television Broadcast shall have the following dutiesand authorities:Issuance of license and allocation of frequency to radio and television systems in accordancewith the already set out standards.Issuance of professional guidance to political parties as for using radio and television.Issuance of essential guidance to owners of the electronic media in consultation with the mediadirectors and civil society.Monitoring the observation of the provisions of this law by mass media.Determine broadcasting policy of the state-run radios and televisions.(2) The National Commission of Radio & Television Broadcast is an independent entity and shallreport to the President of its activities.Article Twenty-Two:The applicant of audio and visual mass media (Radio and Television) license shall be bound toprovide the following information to the National Commission of Radio & Television Broadcast,in order to acquire the license.1. Full identity and residential domicile.2. Name and the activity location of the audio and visual media.3. Type of the audio-visual media.4. Publications goals and objectives.5. Source and the amount of budget.6. Quantity and quality of machinery and equipment.Article Twenty-Three:Every audio - visual media shall have a concessionaire and an editor-in-chief inaccordance with the provision of this law.Chapter SixConditions and the obligations of the concessionaireArticle Twenty-FourThe concessionaire of a mass media shall meet the following conditions:Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 22
    • l. Hold citizenship ID of the country.2. Have completed 18 years of age.3. Have not been sentenced to depravity from civil rights by an authoritative court.Article Twenty-Five;1. The concessionaire of audio - visual media and print media shall be bound to registerthe media in accordance with the provisions enshrined in this law.2. If the publication has started prior to registration, the concessionaire shall be boundto register the media within one week, in accordance with the provisions of this law.Article Twenty-Six:If the concessionaire believes that the decision of the Ministry of Information and Cultureregarding the rejection of issuance of license is in violation of the provision of law, shallrefer the case to Media Evaluation Commission, if still not satisfied, the concessionaire canappeal to a court.Article Twenty Seven:l. The transfer of the ownership of a publication, mass media, and transfer of copyrightshall be permissible. The person to whom the ownership or the right has been transferred shall bebound to re-adhere to the provisions of articles 24 and 28 of thislaw.2. The right to establish publication organ and media and the right to print and publish shall liewith the concessionaire. If the right is transferred to anybody else, the provision of article 24 and28 of this law shall re-apply.Article Twenty-Eight:The editor-in-chief of a media shall be held responsible for its publication.Chapter SevenThe conditions and obligations of Editor-in-chiefArticle Twenty-Nine:The editor-in-chief shall meet the following requirements:1. Hold Afghanistan citizenship ID card. 2. Have completed eighteen years of age.3. Hold certificate of professional education, or at least three year of experience injournalism.4. Have not been sentenced to depravity of civil rights by an authoritative court.Being not an official civil servant, unless it is a state-owned publication.Article Thirty:The editor-in-chief shall balance the right of the critic and criticized individual in therelevant media.Chapter EightProhibited publicationsThe publication of the following matters shall not be allowed in the mass media:l. The matters contrary to principles of Islam and offensive to other religions and sects.2. The matters leading to dishonoring and defamation of individuals.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 23
    • Chapter Nine:Penal provisionsArticle Thirty-Two:The concessionaire shall be held accountable in case of violation of the provisions of thislaw.Article Thirty-Three:l. The real or incorporeal persons that embark on establishing mass media in the Afghan territory,neglecting the provisions of this law shall be sentenced to cash fine2. Should the founder or convener of the mass-media be a real person, shall be cashfined in the following order:Q Television: fifteen thousands (15,000) Afghanis. ~ Radio: ten thousands (10,000) Afghanis. 0Information Agency: ten thousands (10, 000) Afghanis.3. Should the founder or the convener of the mass-media be an incorporeal person,shall be cash-fined in the following order:. Television: seventeen thousand (17,000) Afghanis.. Radio: twelve thousand (12, 000) Afghanis.. Cable Network: thirty-four thousand (34, 000) Afghanis.. Information Agency: twelve thousand (l2, 000) Afghanis.Article Thirty-Four:l. The editor-in-chief can avoid disclosing the name of the author. In this case, the responsibilityarising from the publication of the subject is directed towards the editor-in-chief.2. Critic articles with fictitious name of the author shall be allowed to be published inperiodicals. The responsibility arising from the article or work lies with the editor-in-chiefprovided he knows the writer by name and identity.Article Thirty-Five:l. The author shall be prosecuted as the perpetrator of the offense if he/she is found guiltyaccording to the provisions of this law, while the editor-in-chief shall be regarded as theaccomplice.2. Should the author is unknown; the responsibility resulted from the publication ofthe work lies only with the editor-in-chief.Article Thirty-Six:If the author is sentenced to cash-fine, he/she shall be obliged to pay the amount during thecourse of one month from the date of sentence, according to the provisions of the law.Article Thirty-Seven:Citizens of foreign countries shall be allowed to make cinematography films, on conditionof prior permission of Ministry of Information and Culture.Article Thirty-Eight:The activities of the mass medias shall be regulated in a constitution covering objectives, duties,authorities, structure and financial affairs.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 24
    • Article Thirty-Nine:The Ministry of Information and culture is obliged to ensure facilities required for the freeoperation of local and foreign mass media.Article Forty:The concessionaire and editor-in-chief of the media who have begun their activities prior to theenforcement of this law shall have to adhere to its provisions, within two months ofits enforcement date.EU Election Observation Mission 2005:The Media CommissionThe Electoral Law, Art.51, establishes a Media Commission that should be operational no laterthan 60 days before the Election Day in order to monitor the coverage of the candidates duringthe official campaign period. The Commission also has a mandate to assess complaints aboutmedia coverage and breaches of the Media Code of Conduct issued by it. Its overall compositionand responsibilities are determined by the JEMB. JEMB, Decision No. 44 of 19 July, 2005appointed five Media Commissioners - three Afghan nationals and two internationals.Electoral Fairness Audit Results for the Political Content of Media:The FDA electoral fairness audit team did not reach consensus on a score.The scores were totaled and averaged, with each score having equal weight.Total score: 50 percentRational for Score:The state disallows public and private media (including broadcasters and the press) fromdishonoring and defaming of individuals, and criticizing the principles of Islam. (Source: MassMedia Law, Article 6; Law on Mass Media, Chapter, Article 1-2)Outside of the election period, the state does not regulate the public and private media forpolitical content. (FDA researchers could no Afghan regulation of political content outside of theelection period.)There are no ownership concentrations regulations in any of the Afghan media. (FDA researcherscould no Afghan regulation of political content outside of the election period.)Private media (including broadcast and the press) is required to get a media license from theMinistry of Information and Culture. (Source: Mass Media Law, Articles 38-40; Law on MassMedia, Chapter 3, Article 9, Chapter 5, Articles 22 and 26)Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 25
    • Concessionaires, who are required for TV and Radio networks, must not have been sentenced todepravity of civil rights by a authoritative court. Concessionaires can appeal decisions. (Source:Law on Mass Media, Chapter 5, Article 26)Public media must “fairly and impartially” (or “fair and unbiased”) broadcast candidateplatforms, comments, and objectives during election campaigns. Outside of the electioncampaign, there is no “fair and unbiased” requirement on the public media. There is no equalityrequirement. (Source: Mass Media Code of Conduct; Election Law, Articles 50-51)Public possession and properties must be used equally by all candidates or not at all. (Source:Mass Media Code of Conduct, Article 4; Election Law, Articles 50-51)Private media (including broadcast and the press) must publish, disseminate platforms, views,goals of candidates and parties in a fair and unbiased manner. There is no equality requirement.Outside of the election period, private media is not required to adhere to the standard of “fair andunbiased.” (Source: Mass Media Code of Conduct, Article 4; Election Law, Articles 50-51)The state allows all registered candidates to have access to the media. (Source: Election Law,Article 50(2))A media commission monitors fair reporting and coverage during election campaigns and dealswith complaints. (Source: Election Law, Article 51)The Mass Media Code of Conduct provides guidelines for mass media. The Code states thatmass media during an election campaign must disseminate “fair, balanced, accurate, andimpartial” reporting that is not misleading to the public. There is no requirement for equal orcomplete coverage. The terms fair and balanced are subject to interpretation. Equal is only usedin terms of advertisers treatment. (Source: Mass Media Code of Conduct)During an election campaign, mass media must not disseminate false information, defamatorystatements, in relation to personal character or conduct of a candidate, and intended prejudicialaffect on a candidate. (Source: Also, mass media must provide equal treatment to all politicaladvertisers. (Source: Mass Media Code of Conduct, Articles 6-8)Citizens, candidates, parties etc., have a right of correction via orders from Electoral ComplaintsCommission and Media Commission. (Source: Mass Media Code of Conduct, Articles 13-14)Election campaigns start at least 120 days prior to the election day. (Source: AfghanistanRegulation of Election Campaigns, Election Campaign Period, Article 3)With reference to the Afghan Penal Code, an individual who is convicted of defamation willreceive up to two years in prison or a fine not exceeding 20,000 Afghanis. (412.80 USD)(Source: Afghan Penal Code, Defamation)The score of 50 percent means that the legislative basis for the medias political content isbalanced between fair and unfair. This balance is shown in the extensive laws and regulations onFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 26
    • the medias political content during the election period, and the lack of them outside of theelection period. Although the election period is more significant time period in terms of the voterawareness, the non-election period is significantly longer. 120 days compared to 1340 days.During the non-election period through a minority controlled media, voters may be molded to theviews of a particular party, so that during the election period, other parties do not have areasonable chance of winning the election.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 27
    • Chapter Two: Candidates’ and Parties’ InfluenceChapter two will focus on the research and audit results of Afghan laws and regulations withrespect to the fairness of candidates and parties’ influence before, during and after elections.Chapter Summary: Afghanistan received a score of 22.2 percent for candidate and partyinfluence. The score means that legislative basis for candidate and party influence before, during,and after an election is almost significantly more unfair than fair. Barring the minimal barrier toentry for registration of parties (i.e. at least 700 members) and regulation of political content ofpublic and private media during the election period, there are many unfair elements: high agebarriers for candidates, ministers, and the president; excessive fees for presidential candidates(50,000 Afghanis); no transparency of electoral donations and spending; excessive cap onelectoral donations (2 million Afghanis); no proportional representation; at least 15 percent ofvotes required for return of deposit to presidential candidates; candidates must not havecommitted a criminal offense; and no regulation of political content outside of the electionperiod. Through these unfair aspects and others, the Afghan electoral system is exclusive to thewealthy and privileged Afghan class.Document Excerpts:The following excerpts were identified by the FDA researchers as relevant. The FDA researchersmade some excerpts bold to emphasize high relevance:Afghanistan Constitution:Article 35 [Organizations, Parties](1) The citizens of Afghanistan have the right to form social organizations for the purpose ofsecuring material or spiritual aims in accordance with the provisions of the law.(2) The citizens of Afghanistan have the right to form political parties in accordance with theprovisions of the law, provided that:-- The program and charter of the party are not contrary to the principles of sacredreligion of Islam, and the provisions and values of this Constitution.-- The organizational structure, and financial sources of the party are made public.-- The party does not have military or paramilitary aims and structures.-- The party should have no affiliation to a foreign political party or sources.(3 Formation and functioning of a party based on ethnicity, language, Islamic school ofthought (mazhab-i fiqhi) and region is not permissible.(4 A party set up in accordance with provisions of the law shall not be dissolved without lawfulreasons and the decision of an authorized court.Chapter III The PresidentArticle 60 [Head of State, Vice Presidents](1) The President is the head of state of the Islamic Republic of Afghanistan, and conducts hisauthorities in executive, legislative, and judiciary branches in accordance with the provisions ofthis Constitution.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 28
    • (2) The President shall have two Vice Presidents, one first and one second.(3) The candidate to the Presidency on his or her candidacy shall declare the name of the VicePresidents to the nation.(4) The Vice President in the absence, resignation, and or death of the President, acts inaccordance with the provisions of this constitution.Article 61 [Direct Election](1) The President is elected by receiving more than 50% of the votes cast through free,general, secret, and direct voting.(2) The presidential term is expired at the first of Jawza of the fifth years after theelections.(3) Elections for the new president are held within thirty, to sixty days before the end of thepresidential term.(4) If none of the candidates succeeds to receive more than 50% of the votes in the firstround, a run-off election shall be held within two weeks.(5) In this round, only two candidates with the highest number of votes will participate.(6) In the run-off, the candidate who gets the majority of the votes shall be elected as thePresident.(7) In case of death of one of the candidates during the first or second round, after the electionsor prior to the announcement of the results of elections, new elections shall be held in accordancewith the provisions of law.(8) The elections for the post of president shall be held under the supervision of the IndependentCommission supervising of the Elections.(9) This Commission shall be established to supervise all elections and referendums in thecountry, in accordance with the provisions of law.Article 62 [Qualifications](1) Presidential candidates should posses the following qualification:-- Should be citizen of Afghanistan, Muslim and born of Afghan parents, and should nothave citizenship of another country.-- On the day of becoming a candidate, his age should not be less than forty years.-- Should not have been convicted of crimes against humanity, criminal act, or deprivationof the civil rights by a court.(2) No one can be elected as president for more than two terms.(3) The provision of this article is applied to the Vice Presidents as well.Chapter IV The GovernmentArticle 71 [Ministers](1) The government consists of the ministers who work under the Chairmanship of the President.(2) Ministers are appointed by the President and shall be introduced for approval to the NationalAssembly.Article 72 [Qualifications]The person who is appointed as the Minister, should have the following qualifications:-- Must have only the citizenship of Afghanistan. Should a nominee for a ministerial post alsoFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 29
    • hold the citizenship of another country, the House of Representatives [Wolesi Jirga] shall havethe right to confirm or reject his or her nomination.-- Should have higher education, work experience and, good reputation.-- His age should not be less than thirty-five.-- Should not have been convicted of crimes against humanity, criminal act, or deprivation ofcivil rights by a court.Article 73 [Incompatibility](1) The Ministers can be appointed from within and without the National Assembly.(2) If a member of the National Assembly is appointed as a minister, he loses his membership inthe National Assembly, and is replaced by another person in accordance with the provisions oflaw.Article 74 [Oath of Office]Prior to taking office, the minister perform the following oath in the presence of the President:"In the name of Allah, the merciful and compassionate:I swear in the name of God Almighty to support the provisions of the sacred religion of Islam,follow the Constitution and other laws of Afghanistan, protect the rights of citizens, andsafeguard the independence, territorial integrity and national unity of Afghanistan, and considerGod Almighty present in performing all my responsibilities, and honestly perform the dutiesassigned to me."Article 75 [Duties of the Government]The government has the following duties.-- Execute the provision of this Constitution, other laws, and final orders of the courts.-- Protect the independence, defend the territorial integrity, and safeguard the interests anddignity of Afghanistan in the international community.-- Maintenance of public law and order and elimination of administrative corruption.-- Prepare the budget, regulate financial affairs, and protect public wealth.-- Devise and implement programs for social, cultural, economic, and technological progress.-- Report to the National Assembly at the end of the fiscal year about the tasks accomplished andabout the main plans for the new fiscal year.-- Perform other duties as recognized by this Constitution and other laws to be duties of thegovernment.Article 83 [House of Representatives](1) Members of the House of Representatives [Wolesi Jirga] are elected by the people throughfree, general, secret, and direct elections.(2) Their mandate ends on the 1st of Saratan of the fifth year after the elections, and the newassembly starts its work.(3) The election of the members of the House of Representatives [Wolesi Jirga] shall be heldwithin 30 to 60 days before the expiry of the term of the House of Representatives [WolesiJirga].(4) The number of members of the House of Representatives [Wolesi Jirga], proportionateto the population of each region, shall be not more than two hundred and fifty.(5) Electoral constituency and other related issues shall be determined by election laws.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 30
    • (6) In the election law measures should be adopted for so the election system shall providegeneral and just representation for all the people of the country, and at least two female delegateshould be elected from each province.Article 84 [Senate](1) Members of the Senate [Meshrano Jirga] are elected and appointed as follows:(2) From among the members of each provincial council, the respective council elects oneperson for a period of four years.(3) From among the district councils of each province, the respective councils elect oneperson for a period of three years.(4) The President from among experts and experienced personalities -- including tworepresentatives from the disabled and impaired and two representatives from the Kochis --appoints the remaining one-third of the members for a period of five years.(5) The president appoints 50% of these people from among women.(6) A person, who is appointed as a member of the Senate [Meshrano Jirga], shall relinquish hismembership in the respective council, and another person replaces him in accordance with thelaw.Article 85 [Qualifications](1) A person who is nominated or appointed as a member of the National Assembly should havethe following qualifications in addition to those considered by voters.(2) Should be the citizen of Afghanistan, or has obtained the citizenship of the state ofAfghanistan at least ten years before becoming a candidate.(3) Should not have been convicted by a court for committing a crime against humanity, acrime, or sentenced of deprivation of his civil rights .(4) Members of House of Representatives [Wolesi Jirga] should be Twenty Five years old atthe date of candidacy, and members of the Senate [Meshrano Jirga] should be Thirty Fiveyears old at the date of candidacy or appointment.Article 153 [Party Incompatibility]Judges, Attorneys, and Officers of the Armed Forces and Police, and members of the NationalSecurity, cannot be members of political parties during their terms of office.Decrees on Non-interference in Electoral Affairs:Article1:The officials of the government institutions, including the Ministers, Directors of theIndependentDirectorates, Deputy Ministers, Judges, Attorneys, Heads of the government institutions,Governors,Deputy Governors, and all officials of the Ministry of Defense, Ministry of Interior, GeneralDirectorate of National Security, are obliged to observe the following points during the conductof elections:1 Noninterference in the electoral process, except where predicted in the law.2 Refrain from actions that influence the voters to unveil whom have they voted forthem to vote to a specific candidate or committing any action that can interrupt the principle offree, confidential and direct voting.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 31
    • 3 Noninterference in the meetings, preparation of meetings, gatherings, peaceful rallies duringthe electoral process.4 Refrain from misusing the government resources and facilities in favor of any candidate.Refrain from collection, misshaping of the posters or other electoral campaign materials andresources of the candidates.6 Ensure the security of the candidates and voters,7 Restrain from designation or termination of individuals on government positions for thepurpose of electoral campaigning.Article2:In case of violation of the provisions of this decree, the offender shall be taken under legalcustody andface judicial pursuit.Article3:The UN agency, its relevant organizations and the international community are requested toavoid anyinterference prior and after the electoral process, that can jeopardize their impartiality.Political Parties LawArticle 3The political system of the State of Afghanistan is based on the principles of democracy andpluralism of political parties.Chapter twoEstablishment and registration of political partiesArticle 4Afghan citizens of voting age can freely establish a political party, irrespective of their ethnicity,race, language, tribe, sex, religion, education, occupation, lineage, assets and place of residence.Article 5Political parties can function freely on the basis of the provisions of this law, and have equalrights and obligations before the law.Article 6Political parties shall not: 1. pursue objectives that are opposed to the principles of the holy religion Islam; 2. use force, or threaten with, or propagate, the use of force;Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 32
    • 3. incite to ethnic, racial, religious or regional discrimination; 4. create a real danger to the rights and freedom of individuals or intentionally disrupt public order and security 5. have military organizations or affiliations with armed forces 6. receive funds from foreign sources.Article 7The headquarters and any regional offices of a political party shall be located in Afghanistan.The government shall ensure the security and safety of the political party’s offices.Article 8 1. All political parties shall be registered with the Ministry of Justice. 2. The procedure for establishing and registering political parties shall be regulated by separate regulation.Article 9The Ministry of Justice may refuse the registration of political parties which:(a) do not fulfill the requirement of Article 6(b) have fewer than 700 members at the time of registration(c) wish to register under the name of a political party that has already been registered.Article 10If the Ministry of Justice rejects the registration of a political party, the applicant shall have theright to appeal to the relevant courtArticle 11A political party may officially start its activities after being registered by the Ministry of Justice.Article 12A registered political party shall enjoy the following rights: • Independent political activity; • Permanent or temporary political alliance or coalition with other political parties; • Open and free expression of opinions, both in writing and verbally, on political, social, economical and cultural issues, and peaceful assembly; • Establishing an independent publication organ; • Access to the media at the expense of the political party; • Introducing candidates at all elections;Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 33
    • • Other rights in accordance with the aims and duties of a political party as indicated in its constitution.Article 13 1. Afghan citizens who have completed the age of 18 and have the right to vote can acquire membership of a political party. 2. A person shall not be member of more than one political party at a time. 3. Judges, prosecutors, leading cadres of the armed forces, officers, non-commissioned officers, other military personnel, police officers, and personnel of national security, shall not be members of a political party during their tenure of office.Chapter threeFinancial mattersArticle 14The funds and expenses of political parties shall be public and transparent.Article 15(1) Political parties may receive income from the following sources:(a) Membership contributions(b) Donations by Afghan natural persons up to two million Afghanis per year(c) Income from a party’s movable and immovable property(d) Subsidies by the government in connection with elections(e) Other contributions by members(2) Political parties shall register all their income with relevant offices and deposit it in a bankaccount.Article 16 1. The leadership of the political party shall bear financial responsibility during its tenure. 2. In order to carry out its financial affairs, the leadership of the political party shall appoint one or more authorized representatives and introduce their signatures to the relevant bank. 3. The movable and immovable property of political parties shall be registered in the office of the party and in the Ministry of Finance through legalized documents.Chapter fourDissolution of a political partyArticle 17Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 34
    • The dissolution of a political party shall not be ordered unless: 1. the party uses force, or threatens with the use of force or uses force to overthrow the legal order of the country, or the party has a military organization or affiliations with armed forces, 2. lawful measures taken to prevent the situations mentioned in sub- item 1 of this Article are not effective, 3. the party acts against the articles of the Constitution and/or this law.Regulation of Election Campaigns:Electoral Campaign PeriodArticle Three:The commission, considering article 46 of the Electoral Law, shall specify and publicize the startand end of the Electoral Campaign Period at least 120 days ahead of E-day.Conditions related to Electoral CampaignsArticle Four:1) Within the time limits set by the commission, predicted legal conditions and consideringtheconcerned code of conduct, political parties and candidates can conduct electoralcampaigns byorganizing rallies, propagandizing through mass media (audio and video) and other legalmeans.2) Political parties, candidates and their supporters neither can interfere in other politicalparties or candidates’ electoral campaigns nor disturb their activities.3) Candidates and political parties shall not involve armed forces personnel, such as Ministries ofDefense and Interior and General Directorate of National Security troops in their electoralcampaign activities while they are in military uniform or on duty.4) Political parties and candidates can not invite any foreign nationals to participate inelectoralcampaigns’ activities.5) Participation or non participation of individuals in electoral campaigns is not mandatory.Use of Resources during Electoral CampaignsArticle Six:1) To raise public awareness, Public Media (TV, radio, and print media) shall fairly andimpartiallybroadcast and publish candidates’ platforms, comments, and objectives during electoralcampaigns. Moreover, the State Media shall broadcast and publish the platforms, comments andobjectives of the candidates in conformity with the designated time line of the IEC fairly andimpartially.2) No candidate shall use public possessions and properties during electoral campaigns unless anauthorized authority provides equal facilities to all candidates.Nonintervention of Government Departments’ Officials in Electoral Campaigns’ AffairsFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 35
    • Article Seven:Government Departments’ Officials shall observe the following points during electoralcampaigns:1- Avoiding intervening directly or indirectly in favor of or against a certain party or candidatewhileon duty.2- Avoiding intervening in meetings, gatherings, and peaceful rallies.3- Avoiding preferential behavior, such as explicit criticism against or support for a candidate.4- Avoiding using government facilities in favor of or against a candidate.5- Avoiding removing or destroying posters and other publicity means of candidates.The details of the mentioned issues in the enclosed policy document with this regulation havealready been stated.Ending the Electoral Campaign PeriodArticle Eight:Electoral Campaign Period comes to an end 48 hours ahead of polling day. Candidates,political parties, and their supporters cannot continue their campaigns or distribute electoralcampaign materials after ending the Electoral Campaign Period.Electoral Campaign MaterialsArticle Nine:1) Candidates, Political Parties, and their supporters are obliged to observe the followings duringthe Electoral Campaign Period:a) Candidates shall not take any step towards the Electoral Campaign by making use of themedia and arranging rallies before the date officially announced by the commission.Electoral Challenges and Complaints RegulationThis regulation has been approved by the Independent Election Commission (hereafter called theCommission) based on the authority given by Article 66 of the Electoral Law to organizechallenge and complaint related affairs during the various phases of the election process.ApplicationArticle 1:This regulation organizes the challenge and complaint related affairs in the following elections:1. Presidential Elections2. Wolesi Jirga Elections3. Provincial Council Elections4. District Council Elections5. Village Council Elections6. Mayor Elections7. Municipal Assembly ElectionsRight of Challenge and ComplaintArticle 2:The following people may challenge the eligibility of candidates or file their complaints relatedtoFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 36
    • violations stated in Article 4 of this regulation.1. All eligible voters2. Agents of political parties, candidates and .ChallengesArticle 3:1) A challenge includes presenting an official document relating to the ineligibility of acandidate on the preliminary list of candidates within the time limits prescribed by theCommission.2) A challenge on the ineligibility of a candidate on the preliminary list of candidates is tobe presented to the Electoral Complaint Commission (ECC). Following the rules ofprocedure of ECC, the Electoral Complaint Commission shall verify the challengespresented to it and if it decides that the candidate must be deleted from the list, ECC shallofficially notify the Commission within the prescribed period.Approval Date: 24.03.2010 Page 2 of 2ComplaintsArticle 4:1) A complaint includes presenting an official document about a violation prescribed inArticle 63 of the Electoral Law, or the regulations or Codes of Conduct approved by theCommission.2) A complaint must be officially recorded and presented to the Electoral ComplaintCommission within 72 hours after the violation occurred.Assistance to the Electoral Complaint CommissionArticle 5:Electoral staff, both in the capital and provinces, must assist the ECC with verifying thechallenges and complaints on a legal basis.Electoral Complaint CommissionArticle 6:Other matters concerning the investigation of challenges and complaints by the ECC shall beorganized according to the rules of procedures issued by ECC.Regulation of Registration of Candidates:ChallengesArticle 6:1) A political party’s agent, a candidate and any Afghan citizen eligible to vote maychallenge the eligibility of candidates included in the preliminary list, after the listis displayed.2) The challenge must be entered on a challenge form and be submitted to theElectoral Complaint Commission within (7) days after the first display of thepreliminary list.3) The Electoral Complaint Commission shall take the final decision on the issue afterevaluating and reviewing the challenge.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 37
    • Electoral Decisions of Complaint CommissionArticle 7:1) The Electoral Complaint Commission shall make its decision based on thedocuments submitted to it regarding the eligibility or ineligibility of a candidateincluded in the preliminary list,2) The Electoral Complaint Commission shall submit its final decision to theCommission regarding the challenges, by the end of the challenge period.Election law:Article 10Recruitment Restrictions(1) The recruitment of officials of political parties and election candidates aselectoral officials is disallowed.(2) Electoral officials while in office cannot stand for elections.(3) A father, grandfather, descendant up to the third generation, mother,grandmother, brother, sister, spouse, uncle, aunt, father-in-law, and mother-in-lawof a candidate shall not have the right to work as an electoral official in theconstituency in which the concerned candidate is running.Article 15Candidacy Requirements(1) The following individuals shall not be qualified to candidate themselves forpresidential, national assembly, provincial, or district council elections, unlessthey have resigned from their positions at the time of filing their nominationpapers:a) Chief Justice, Members of the Supreme Court and Judges;b) Attorney General and Public Prosecutors;c) Ministers and their Deputies, Governors and their Deputies, and DistrictAdministrators;d) Mayors and Nahia Administrators;e) Members of Ministry of Defense, Ministry of Interior, and the GeneralDirectorate for National Security;f) General Directors and Directors of Ministerial Departments andGovernment Offices at the Central and Provincial Level; andg) Electoral Officials.(2) If the individuals listed in sub-article (1) are not elected, they shall not have theright to return to their previous positions unless they are reappointed.(3) Individuals who practically command or are members of unofficial militaryforces or armed groups shall not be qualified to candidate themselves for theelections.(4) No person shall candidate himself or herself in more than one constituency atthe same time.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 38
    • Chapter VINational Assembly ElectionsPart OneWolesi JirgaArticle 19Number of SeatsThe Wolesi Jirga shall have 249 seats.Article 20Allocation of Provincial Seats(1) The Central Statistics Office, under the Ministry of Economy, shall provide, ata time specified by the Commission, the latest official population figures orestimated population of each province to the Commission.(2) Of all the allocated seats, 10 seats shall be allocated to nomads.(3) The commission shall allocate seats to provinces in the following manner:a. The total population of provinces is divided by the total number of seats tobe allocated to provinces (239) to determine the seat allocation quota;b. The population of each province is divided by the seat allocation quota;c. Initially provinces are allocated a number of seats equal to the wholenumber from the division under (b);d. Seats not allocated under (c), are allocated in declining order of the decimalremainder from the division in (b);e. If as a result of this calculation one or more provinces receive fewer thantwo seats, they shall be allocated two seats;f. The total number of seats and population figures of provinces allocatedadditional seats under (e) is excluded from the total number of seats (239)and the total population figures of provinces. For the remaining provinces anew seat allocation quota is calculated and the allocation of seats to theseprovinces is repeated as in (b) through (f).(4) The Commission shall publish the calculations used in the allocation of seatsunder this article.Article 21Awarding of Provincial Seats to Candidates(1) Subject to the provision of article 22 of this Law, Provincial seats shall beawarded to candidates on the basis of the number of votes they have received.(2) In each province, seats shall be awarded to the most voted candidates.(3) No candidate shall be awarded more than one seat.(4) If a candidate is not able to take, or abandons, his or her seat during the term ofthe Wolesi Jirga, the vacant seat shall belong to the next most voted candidatefrom the same gender.Article 22Allocation of Seats to Female Candidates(1) The Commission shall develop procedures and formulas, based on theFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 39
    • population of each province, to determine the number of female candidates torepresent each province in accordance with the requirements of Article 83 of theConstitution, according to which the number of female representatives shall be atleast twice the number of existing provinces of the country.(2) The most voted female candidates in each constituency shall be awarded seatsin accordance with sub-article (1) of this article. Once the representationrequirements are met, the remaining seats shall be awarded according to article 21of this Law.(3) If there are not enough female candidates on the list of candidates to fill theseat(s) allocated to women in a particular constituency, the seat(s) in question shallremain vacant until the next intended Wolesi Jirga elections.Chapter VIIIConduct of the ElectionsArticle 33Election Date(1) The Commission shall announce the election date at least 140 days in advance.(2) The Commission shall prepare and publish, at least 120 days prior to thescheduled election date, an electoral calendar clearly showing all appointed datesof the elections.b. The candidate’s voter registration card or other proof of voter registration;c. Names, registration card numbers, and signatures or thumbprints of personsresiding in the constituency supporting the candidate’s appearance on theballot as follows:i. 10,000 to nominate for Presidential candidates;ii. 300 to nominate for Wolesi Jirga candidates;iii. 200 to nominate for Provincial Council candidates; andiv. 100 to nominate for District Council candidates;v. In the case of the Nomad Constituency, the candidate mustpresent names, registration card numbers, and signatures orthumbprints of 300 persons registered as nomads supporting thecandidate’s appearance on the ballot;d. Sworn statement attesting to the candidate’s Eligibility and Qualifications,committing to uphold the Code of Conduct, confirming their resignationfrom any of the positions set out in Article 15(1), if applicable, confirmingthat they do not command, or belong to, unofficial military forces or armedgroups, and confirming that they have not been convicted of crimes againsthumanity, or any other crime, or have been deprived of civil rights by acourt;e. Presidential candidates shall submit the names of two vice-presidentialcandidates; andf. Candidates shall file a deposit for their candidacy as set out below.(3) The filing deposit for a Presidential candidate shall be Afghanis 50,000, whichdeposit shall be refunded if the candidate is elected or receives at least 15 % of thevalid votes cast in the first round of the election.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 40
    • (4) The filing deposit for a Wolesi Jirga candidate shall be Afghanis 10,000, whichdeposit shall be refunded if the candidate is elected or receives at least 2 % of thevalid votes cast in the respective constituency.(7) The Commission shall establish, by Regulation, procedures for the submissionof candidate nominations.Article 50Fair and Neutral Publication and Dissemination of Ideas(1) For the purpose of public information during the electoral campaign period, themass media (radio, television, and the press) shall publish and disseminate theplatforms, views and goals of the candidates in a fair and unbiased manner, inaccordance with the Code of Conduct established by the Commission.(2) Candidates shall have access, to the extent possible, to the media. For thepurpose of public information during electoral campaign period, state-run mediashall publish and disseminate, as agreed with Commission, the platforms, views,and goals of the candidates in a fair and unbiased manner.(3) State-owned media shall institute, as necessary, goals, policies and proceduresto ensure fair coverage of the elections and implement the provisions of subarticles (1) and (2).Article 51Media Commission(1) The Commission shall establish, at least 60 days prior to the election date, aMedia Commission (MC). The MC shall monitor fair reporting and coverage ofthe electoral campaign period and shall deal with the complaints concerning anybreaches of fair reporting or coverage of political campaign, or other violations ofthe Mass Media Code of Conduct. Appeals, may be lodged with the Commission.(2) The composition, responsibilities, and authorities of the MC shall bedetermined by the Commission.Chapter IXElectoral Complaints and OffencesArticle 52Electoral Complaints Commission(1) In order to deal with electoral offences, complaints and challenges, anElectoral Complaints Commission (ECC) shall be established with the followingcomposition:a. One member appointed by the Supreme Court;b. One member appointed by the Afghan Independent Human RightsCommission; andc. Three International members appointed by the Special Representative ofthe Secretary General in Afghanistan.(2) The ECC shall elect one of its members as the Chairperson of the ECC.(3) The ECC shall have the jurisdiction to consider and adjudicate the following:a. Complaints relating to electoral offences, including violations of the law inthe conduct of the electoral process, provided that the complaint has beenFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 41
    • received prior to the certification of the results of the election; andb. Challenges to the list of candidates or to the eligibility or qualifications ofa candidate raised during the electoral process.(4) The ECC shall develop and implement its own procedures for considering andadjudicating complaints.(5) The ECC may consider matters otherwise within its jurisdiction on its owninitiative and in the absence of a formal complaint or challenge.(6) Decisions of the ECC shall be final.(7) The ECC shall discontinue its work no later than 30 days following thecertification of results.(8) In order to deal with complaints arising in the provinces, the ECC maydelegate its authority to commissions at provincial level, which commissions shallconsider complaints within their jurisdiction and in accordance with theprocedures established by the ECC.Article 53Electoral OffencesThe following acts shall constitute Electoral Offences:a. Providing false information to the Commission, any commissionestablished by the Commission, or the Electoral Complaints Commission;b. Threatening, intimidating or attacking the dignity of a voter or candidate ora journalist covering the election in any way;c. Impeding anyone, including accredited observers and agents, fromparticipating in the electoral process;d. Committing fraud in voting or vote counting;e. Offering or receiving a payment or other benefit for the purpose ofinfluencing the electoral process;f. Possessing, or attempting to obtain, more than one voter registration card;g. Voting or attempting to vote using a forged or altered card or the card ofanother person;h. Changing, replacing, stealing, or destroying electoral documents withoutlegal authorization;i. Manufacturing false voter registration cards, ballots, or official forms;j. Obtaining a voter registration card under false pretences;k. Attempting to vote more than once in an election;l. Interfering with election materials or ballot boxes without due authority;m. Interfering with electoral officials in the performance of their duties;n. Violating the Code of Conduct for Political Parties, Candidates and Agents,or the Code of Conduct for Electoral Officials;o. Making use of funds originating from illegal activities;p. Making use of foreign funds for the purpose of influencing the electoralprocess;q. Inciting or provoking other persons to commit an Electoral Offence;r. Violating provisions of this Law or other legal instrument governing theelectoral process; ands. Failing to comply with any order of the Commission, the ECC, or the MC.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 42
    • Article 54Sanctions and Penalties(1) Taking into consideration the circumstances, the ECC may, if it determinesthat an Electoral Offence has occurred:a. Issue a warning to, or order, the offending individual or organization, totake remedial action;b. Impose a fine not to exceed 100,000 Afghanis;c. Prior to the certification of results, order a recount of ballots, or a repeat ofthe voting;d. Remove a candidate from the candidates list, if there are justified reasons;e. Invalidate ballot papers not meeting the conditions for validity, or order thecount or recount of a ballot paper or a group of ballot papers; andf. Prohibit an offending individual from serving in the Commission or itsSecretariat for a period not exceeding 10 years.(2) The ECC may impose sanctions on a political party or candidate for ElectoralOffences committed by its members or supporters. In imposing such a sanction theECC shall take into consideration any evidence demonstrating that the politicalparty or candidate made reasonable efforts to prevent its members and supportersfrom committing Electoral Offences.(3) In addition to imposing the above sanctions, the ECC may refer the offenderto the Public Prosecution Office if it has evidence that the offender hasperpetrated a criminal act.EU Election Observation Mission 2005:The Media CommissionThe Electoral Law, Art.51, establishes a Media Commission that should be operational no laterthan 60 days before the Election Day in order to monitor the coverage of the candidates duringthe official campaign period. The Commission also has a mandate to assess complaints aboutmedia coverage and breaches of the Media Code of Conduct issued by it. Its overall compositionand responsibilities are determined by the JEMB. JEMB, Decision No. 44 of 19 July, 2005appointed five Media Commissioners - three Afghan nationals and two internationals.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 43
    • Electoral Fairness Audit Results for Candidates and Parties Influence:The FDA electoral fairness audit team did not reach consensus on a score.The scores were totaled and averaged, with each score having equal weight.Total score: 22.2 percentRational for Score:To be registered, political parties must conform to the principles of Islam and be national inidentity. (Source: Political Parties Law, Article 6; Afghan Constitution, Article 35)Also, political parties must have at least 700 members, and have no funds from foreign sources.(Source: Afghan Constitution, Articles 61(1), 83(2))President elected by receiving 50 percent or more of the vote. If no candidates receives 50percent or more, a run off of the two candidates takes place. The candidate with the majority ofthe votes wins the presidency. (Source: Afghan Constitution, Article 61)Presidential, ministers, parliamentarians from both the Wolesi Jirga and Meshrano Jirga can haveno convictions of crimes against humanity, criminal act, deprivation of civil rights by a court.(Source: Afghan Constitution, Articles 61, 72, 85)Presidential candidates must be at least 40 years old.Ministers must be at least 35 years old.Wolesi Jirga candidates must be at least 25 years old.Meshrano Jirga appointments must be at least 35 years old. (Source: Afghan Constitution,Articles 61, 72, 85)Wolesi Jirga has 249 seats according to the Election Law. The seats are in proportion topopulation of each region. (Source: Afghan Constitution, Article 83; Election Law, Article 19)The state reserves 10 seats for Nomads. (Source: Election Law, Article 20(2))The state guarantees at least 2 seats for a province. (Source: Election Law, Article 20(3))The 239 seats in Wolesi Jirga are awarded based on first-past-the-post. (Source: Election Law,Article 21)The number of women seats in Wolesi Jirga will be twice the number of provinces. There are 34provinces in Afghanistan. 64 seats reserved for women candidates. If there are not enoughwomen candidates to fill seats, then they will remain vacant. (Source: Afghan Constitution,Article 83(6); Election Law, Article 22)Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 44
    • Two-thirds of the Meshrano Jirga seats are appointed by the district councils.One-third of the Meshrano Jirga seats appointed by the President. 50 percent must be women,and two must disabled and impaired, and two must be from Kochis. (Source: AfghanConstitution, Article 84 (4) , (5))Through detailed laws, the state disallows any form of government interference in the electoralprocess. (Source: Decrees on Non-interference in Electoral Affairs, Articles 1, 7)Parties and candidates are entitled to make electoral complaints, including ineligibility ofcandidates. Complaints must be submitted within 72 hours of violation. For ineligibilitycomplaints, they must be submitted within 7 days of display of the electoral lists. (Source:Electoral Challenges and Complaints Regulations, Articles 1-6; Regulation of Registration ofCandidates, Articles 6-7)For registration, candidates must have the following voter support:Presidential candidates need at least 10,000 supporters.Wolesi Jirga candidates need at least 300 supporters.Nomads needs at least 300 supporters. (Source: Election Law, Article 33)Electoral Finances:Political parties organization and financial resources are to be made public. There are noprovisions to make this reality. (Source: Election Law, Article 14; Ennis, David, “Analysis of theElectoral Legal Framework of Afghanistan”, IFES Legal Advisor, February 28, 2006)Citizens donations to candidates and/or parties are capped at 2 million Afghanis (4128 USD) peryear.(Source: Election Law, Article 15)The Electoral Law mentions public electoral subsidies, but no specifics are mentioned. (Source:Election Law, Article 15)Electoral fees for candidates:(According to the World Factbook, in 2010, the Afghanistan GDP per capita is 900 USD, theunemployment rate is 35 percent including those individuals living below the poverty line, andthe mean graduate pay is .56 cent per hour.) (Source: The World Factbook, Afghanistan)Presidential candidates must pay the state 50,000 Afghanis (1032 USD), and will be refunded ifthe candidate attains at least 15 percent of the vote in the first round. (Source: Election Law,Conduct of Elections)Wolesi Jirga candidates must pay the state 10,000 Afghanis (200.64 USD), and will be refundedif the candidate attains at least 2 percent of the vote. (Source: Election Law, Conduct ofElections)Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 45
    • The state disallows Afghans from use of foreign and illegal funds in electoral campaigns.(Source: Election Law, Article 53(p))Violation of the Electoral Law cannot exceed a fine of 100,000 Afghanis (2062 USD). (Source:Election Law, Article 53)In the Electoral Law, there are no concrete mechanisms for monitoring candidate and partyfinances. (Source: Ennis, David, “Analysis of the Electoral Legal Framework of Afghanistan”,IFES Legal Advisor, February 28, 2006)The Joint Electoral Management Body (JEMB) can impose electoral regulation based on theElectoral Law and Constitution. In 2005, the JEMB established limits for electoral donations andspending, and provisions for candidates and parties to keep record of their finances. However,there were no mechanisms to police candidate and party finances, and the Independent ElectoralCommission never requested to see the financial records of any candidate. (Source: Ennis,David, “Analysis of the Electoral Legal Framework of Afghanistan”, IFES Legal Advisor,February 28, 2006)Mass Media:The state disallows public and private media (including broadcasters and the press) fromdishonoring and defaming of individuals, and criticizing the principles of Islam. (Source: MassMedia Law, Article 6; Law on Mass Media, Chapter, Article 1 and 2.)Outside of the election period, the state does not regulate the public and private media forpolitical content. (FDA researchers could no Afghan regulation of political content outside of theelection period.)There are no ownership concentrations regulations in any of the Afghan media. (FDA researcherscould no Afghan regulation of political content outside of the election period.)Private media (including broadcast and the press) is required to get a media license from theMinistry of Information and Culture. (Source: Mass Media Law, Articles 38, 39, 40; Law onMass Media, Chapter 3, Article 9, Chapter 5, Articles 22 and 26)Concessionaires, who are required for TV and Radio networks, must not have been sentenced todepravity of civil rights by a authoritative court. Concessionaires can appeal decisions. (Source:Law on Mass Media, Chapter 5, Article 26)Public media must “fairly and impartially” (or “fair and unbiased”) broadcast candidateplatforms, comments, and objectives during election campaigns. Outside of the electioncampaign, there is no “fair and unbiased” requirement on the public media. There is no equalityrequirement. (Source: Mass Media Code of Conduct; Election Law, Articles 50-51)Public possession and properties must be used equally by all candidates or not at all. (Source:Mass Media Code of Conduct, Article 4; Election Law, Articles 50-51)Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 46
    • Private media (including broadcast and the press) must publish, disseminate platforms, views,goals of candidates and parties in a fair and unbiased manner. There is no equality requirement.Outside of the election period, private media is not required to adhere to the standard of “fair andunbiased.” (Source: Mass Media Code of Conduct, Article 4; Election Law 50-51)The state allows all registered candidates to have access to the media. (Source: Election Law,Article 50(2))A media commission monitors fair reporting and coverage during election campaigns and dealswith complaints. (Source: Election Law, Article 51)The Mass Media Code of Conduct provides guidelines for mass media. The Code states thatmass media during an election campaign must disseminate “fair, balanced, accurate, andimpartial” reporting that is not misleading to the public. There is no requirement for equal orcomplete coverage. The terms fair and balanced are subject to interpretation. Equal is only usedin terms of advertisers treatment. (Source: Mass Media Code of Conduct)During an election campaign, mass media must not disseminate false information, defamatorystatements, in relation to personal character or conduct of a candidate, and intended prejudicialaffect on a candidate. (Source: Also, mass media must provide equal treatment to all politicaladvertisers. (Source: Mass Media Code of Conduct, Articles 6-8)Citizens, candidates, parties etc., have a right of correction via orders from Electoral ComplaintsCommission and Media Commission. (Source: Mass Media Code of Conduct, Articles 13-14)Election campaigns start at least 120 days prior to the election day. (Source: AfghanistanRegulation of Election Campaigns, Election Campaign Period, Article 3)With reference to the Afghan Penal Code, an individual who is convicted of defamation willreceive up to two years in prison or a fine not exceeding 20,000 Afghanis. (412.80 USD)(Source: Afghan Penal Code, Defamation)The score of 22.2 percent for candidate and party influence means that the legislative basis forcandidate and party influence is almost significantly more unfair than fair. The Afghan electoralsystem, through age barriers for candidates, media access based on candidate and party finances,lack of transparency of electoral finances, and no proportional representation, is exclusive to awealthy, privileged class with likely association with the Karzai regime. Afghan citizens outsideof this social sector are marginalized electorally. Moreover, the Taliban and any Afghan citizenconnected to the Taliban are likely excluded from electoral process from being convicted ofcriminal offense and/or deprived of civil and/or political rights.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 47
    • Chapter Three: Electoral FinanceChapter three will focus on the research and audit results of Afghan laws and regulations withrespect to the fairness of Afghan laws and regulations with respect to electoral finance.Chapter Summary: Afghanistan received a score of 0 percent for electoral finance. The scoremeans that the Afghanistans electoral laws and regulations are completely unfair. The FDAauditors could find no overall element of fairness in Afghans electoral laws and regulations.Although the Joint Electoral Management Body (JEMB) has the power to create electoralregulations based on the Afghan Constitution and Electoral Law, in 2005 the JEMB createdelectoral caps on donations and spending, but no mechanisms to enforce them. Also, the statedoes not require candidates and parties to make their finances available to the public. Themaximum fines for breach of the Electoral Law (100,000 Afghanis or 2062 USD) may not beproportionate to the finances of the guilty party. Further, the caps on donations (2 millionAfghanis) favor wealthy citizens and corporations, and the deposits for presidential candidates(50,000 Afghanis) favor wealthy candidates. Most important, FDA auditors agreed that the lackof transparency of electoral finances cancels out any fair provisions such as restrictions againstforeign and government electoral donations.Document Excerpts:The following excerpts were identified by the FDA researchers as relevant. The FDA researchersmade some excerpts bold to emphasize high relevance:Election Law:Chapter threeFinancial mattersArticle 14The funds and expenses of political parties shall be public and transparent.Article 15(1) Political parties may receive income from the following sources:(a) Membership contributions(b) Donations by Afghan natural persons up to two million Afghanis per year(c) Income from a party’s movable and immovable property(d) Subsidies by the government in connection with elections(e) Other contributions by members(2) Political parties shall register all their income with relevant offices and deposit it in abank account.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 48
    • Article 16 1. The leadership of the political party shall bear financial responsibility during its tenure. 2. In order to carry out its financial affairs, the leadership of the political party shall appoint one or more authorized representatives and introduce their signatures to the relevant bank. 3. The movable and immovable property of political parties shall be registered in the office of the party and in the Ministry of Finance through legalized documents.f. Candidates shall file a deposit for their candidacy as set out below.(3) The filing deposit for a Presidential candidate shall be Afghanis 50,000, whichdeposit shall be refunded if the candidate is elected or receives at least 15 % of thevalid votes cast in the first round of the election.(4) The filing deposit for a Wolesi Jirga candidate shall be Afghanis 10,000, whichdeposit shall be refunded if the candidate is elected or receives at least 2 % of thevalid votes cast in the respective constituency.(7) The Commission shall establish, by Regulation, procedures for the submissionof candidate nominations.Chapter IXElectoral Complaints and OffencesArticle 52Electoral Complaints Commission(1) In order to deal with electoral offences, complaints and challenges, anElectoral Complaints Commission (ECC) shall be established with the followingcomposition:a. One member appointed by the Supreme Court;b. One member appointed by the Afghan Independent Human RightsCommission; andc. Three International members appointed by the Special Representative ofthe Secretary General in Afghanistan.(2) The ECC shall elect one of its members as the Chairperson of the ECC.(3) The ECC shall have the jurisdiction to consider and adjudicate the following:a. Complaints relating to electoral offences, including violations of the law inthe conduct of the electoral process, provided that the complaint has beenreceived prior to the certification of the results of the election; andb. Challenges to the list of candidates or to the eligibility or qualifications ofa candidate raised during the electoral process.(4) The ECC shall develop and implement its own procedures for considering andadjudicating complaints.(5) The ECC may consider matters otherwise within its jurisdiction on its owninitiative and in the absence of a formal complaint or challenge.(6) Decisions of the ECC shall be final.(7) The ECC shall discontinue its work no later than 30 days following thecertification of results.(8) In order to deal with complaints arising in the provinces, the ECC mayFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 49
    • delegate its authority to commissions at provincial level, which commissions shallconsider complaints within their jurisdiction and in accordance with theprocedures established by the ECC.Article 53Electoral OffencesThe following acts shall constitute Electoral Offences:a. Providing false information to the Commission, any commissionestablished by the Commission, or the Electoral Complaints Commission;b. Threatening, intimidating or attacking the dignity of a voter or candidate ora journalist covering the election in any way;c. Impeding anyone, including accredited observers and agents, fromparticipating in the electoral process;d. Committing fraud in voting or vote counting;e. Offering or receiving a payment or other benefit for the purpose ofinfluencing the electoral process;f. Possessing, or attempting to obtain, more than one voter registration card;g. Voting or attempting to vote using a forged or altered card or the card ofanother person;h. Changing, replacing, stealing, or destroying electoral documents withoutlegal authorization;i. Manufacturing false voter registration cards, ballots, or official forms;j. Obtaining a voter registration card under false pretences;k. Attempting to vote more than once in an election;l. Interfering with election materials or ballot boxes without due authority;m. Interfering with electoral officials in the performance of their duties;n. Violating the Code of Conduct for Political Parties, Candidates and Agents,or the Code of Conduct for Electoral Officials;o. Making use of funds originating from illegal activities;p. Making use of foreign funds for the purpose of influencing the electoralprocess;q. Inciting or provoking other persons to commit an Electoral Offence;r. Violating provisions of this Law or other legal instrument governing theelectoral process; ands. Failing to comply with any order of the Commission, the ECC, or the MC.Article 54Sanctions and Penalties(1) Taking into consideration the circumstances, the ECC may, if it determinesthat an Electoral Offence has occurred:a. Issue a warning to, or order, the offending individual or organization, totake remedial action;b. Impose a fine not to exceed 100,000 Afghanis;c. Prior to the certification of results, order a recount of ballots, or a repeat ofthe voting;d. Remove a candidate from the candidates list, if there are justified reasons;Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 50
    • e. Invalidate ballot papers not meeting the conditions for validity, or order thecount or recount of a ballot paper or a group of ballot papers; andf. Prohibit an offending individual from serving in the Commission or itsSecretariat for a period not exceeding 10 years.(2) The ECC may impose sanctions on a political party or candidate for ElectoralOffences committed by its members or supporters. In imposing such a sanction theECC shall take into consideration any evidence demonstrating that the politicalparty or candidate made reasonable efforts to prevent its members and supportersfrom committing Electoral Offences.(3) In addition to imposing the above sanctions, the ECC may refer the offenderto the Public Prosecution Office if it has evidence that the offender hasperpetrated a criminal act.Law on Mass Media:Article Thirty-Three:l. The real or incorporeal persons that embark on establishing mass media in the Afghan territory,neglecting the provisions of this law shall be sentenced to cash fine2. Should the founder or convener of the mass-media be a real person, shall be cashfined in the following order:Q Television: fifteen thousands (15,000) Afghanis. ~ Radio: ten thousands (10,000) Afghanis.Information Agency: ten thousands (10, 000) Afghanis.3. Should the founder or the convener of the mass-media be an incorporeal person,shall be cash-fined in the following order:. Television: seventeen thousand (17,000) Afghanis.. Radio: twelve thousand (12, 000) Afghanis.. Cable Network: thirty-four thousand (34, 000) Afghanis.. Information Agency: twelve thousand (l2, 000) Afghanis.Ennis, David, “Analysis of the Electoral Legal Framework of Afghanistan”, IFES LegalAdvisor, February 28, 2006:Although the Electoral Law does not address the issue of campaign finances, the JEMBissued Regulations establishing limits on campaign spending and donations to candidatesduring both the 2004 and 2005 elections. The 2005 Regulation required candidates tokeep records of donations and expenditures and to make such records available to the IECupon request. However, no mechanism for policing the spending and contribution limitswas put in place and the IEC never requested to see the financial records of anycandidates.Given the importance of campaign finance regulation, it would be preferable for the issueto be dealt with in the Electoral Law rather than an implementing Regulation. At thesame time, care should be taken to tailor any system of financial regulation to the Afghanreality. In a country in which 80% of the population is illiterate and financial recordkeeping of any kind is uncommon, it may not be realistic to move quickly to introduce astrict system of financial controls and disclosure requirements.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 51
    • Electoral Fairness Audit Results for Electoral Finance:The FDA electoral fairness audit team reached consensus on a score.The scores were totaled and averaged, with each score having equal weight.Total score: 0 percentRational for Score:Political parties organization and financial resources are to be made public. There are noprovisions to make this reality. (Source: Election Law, Article 14; Ennis, David, “Analysis of theElectoral Legal Framework of Afghanistan”, IFES Legal Advisor, February 28, 2006)Citizens donations to candidates and/or parties are capped at 2 million Afghanis (4128 USD) peryear. (Source: Election Law, Article 15)The Electoral Law mentions public electoral subsidies, but no specifics are mentioned. (Source:Election Law, Article 15)Electoral fees for candidates:(According to the World Factbook, in 2010, the Afghanistan GDP per capita is 900 USD, theunemployment rate is 35 percent including those individuals living below the poverty line, andthe mean graduate pay is .56 cent per hour.) (Source: The World Factbook, Afghanistan 2010)Presidential candidates must pay the state 50,000 Afghanis (1032 USD), and will be refunded ifthe candidate attains at least 15 percent of the vote in the first round. (Source: Election Law,Conduct of Elections)Wolesi Jirga candidates must pay the state 10,000 Afghanis (200.64 USD), and will be refundedif the candidate attains at least 2 percent of the vote. (Source: Election Law, Conduct ofElections)The state disallows Afghans from use of foreign and illegal funds in electoral campaigns.(Source: Election Law, Article 53(p))Violation of the Electoral Law cannot exceed a fine of 100,000 Afghanis (2062 USD). (Source:Election Law, Article 53)In the Electoral Law, there are no concrete mechanisms for monitoring candidate and partyfinances. (Source: Ennis, David, “Analysis of the Electoral Legal Framework of Afghanistan”,IFES Legal Advisor, February 28, 2006; FDA researchers could find no laws or regulations onmonitoring and enforcing candidate and party electoral finances)The Joint Electoral Management Body (JEMB) can impose electoral regulation based on theFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 52
    • Electoral Law and Constitution. In 2005, the JEMB established limits for electoral donations andspending, and provisions for candidates and parties to keep record of their finances. However,there were no mechanisms to police candidate and party finances, and the Independent ElectoralCommission never requested to see the financial records of any candidate. (Source: Ennis,David, “Analysis of the Electoral Legal Framework of Afghanistan”, IFES Legal Advisor,February 28, 2006)Mass media as an individual entity can be fined as follows:TV: 15,000 Afghanis (309.6 USD)Radio: 10,000 Afghanis (200.64 USD)Info Agency: 10,000 Afghanis (200.64 USD) (Source: Law on Mass Media, Article 33)Mass media as a corporation can be fined as follows:TV: 17,000 Afghanis (350.88 USD)Radio: 12,000 Afghanis (274.68 USD)Info Agency: 12,000 Afghanis (274.68 USD)Cable network: 34,000 Afghanis (701.76 USD) (Source: Law on Mass Media, Article 33)In the Electoral Law, there are no concrete mechanisms for monitoring candidate and partyfinances.There are no limits on third-party electoral spending which is independent of a candidate orparty. (Source: FDA researchers could find no Afghan laws or regulations on third-party electoralspending)There are no restrictions on donations from legal entities, except for the 2 million Afghanis (4128USD) cap per year per donor.There are no tax deductions for candidate and party donations. (Source: FDA researchers couldfind no Afghan laws or regulations on electoral tax deductions)The score of 0 percent for electoral finance means that Afghanistans electoral finance laws andregulations are completely unfair. FDA auditors could find no overall element of fairness. Thelack of transparency of Afghanistan electoral finances negates any finances laws promotingfairness such as the ban on foreign and government electoral donations.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 53
    • Chapter Four: Voter SayChapter four will focus on the research and audit results of Afghan laws and regulations withrespect to the fairness of voter say laws and regulations before, during and after an election.Executive Summary: Afghanistan received a score of 22.5 percent for voter say. The scoremeans that the legislative basis for voter say is almost significantly more unfair than fair. On thesurface, Afghanistan has a lot of fair elements for voter say such as freedom of speech andassembly, electoral rights and political representation for women and disabled persons, politicalrepresentation for nomads, and voter assistance for a variety of Afghan groups. However, theseelements are offset significantly by the lack of regulation of the public and private media outsideof the election period, lack of transparency of electoral finances, legislative bias against theTaliban, freedom of speech restricted by required adherence to the principles of Islam, andsystematic favoring of wealthy, established candidates and parties. Voters who support Talibanand small and new political candidates and parties are severely impacted in their electoral say,because the electoral system favors significantly President Karzai and pro-governmentcandidates.Document Excerpts:The following excerpts were identified by the FDA researchers as relevant. The FDA researchersmade some excerpts bold to emphasize high relevance:Afghanistan Constitution:Chapter II Fundamental Rights and Duties of CitizensArticle 22 [Equality](1) Any kind of discrimination and privilege between the citizens of Afghanistan are prohibited.(2) The citizens of Afghanistan -- whether man or woman -- have equal rights and duties beforethe law.Article 23 [Life]Life is a gift of God and a natural right of human beings. No one shall be deprived of this rightexcept by the provision of law.Article 24 [Liberty, Human Dignity](1) Liberty is the natural right of human beings. This right has no limits unless affecting therights of others or public interests, which are regulated by law.(2) Liberty and dignity of human beings are inviolable.(3) The state has the duty to respect and protect the liberty and dignity of human beings.Article 33 [Electoral Rights](1) The citizens of Afghanistan have the right to elect and be elected.(2) Law regulates the conditions and means to exercise this right.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 54
    • Article 34 [Expression, Press, Media](1) Freedom of expression is inviolable.(2) Every Afghan has the right to express his thought through speech, writing, or illustration orother means, by observing the provisions stated in this Constitution.(3) Every Afghan has the right to print or publish topics without prior submission to the stateauthorities in accordance with the law.(4) Directives related to printing house, radio, television, press, and other mass media, will beregulated by the law.Article 36 [Demonstration]The citizens of Afghanistan have the right to un-armed demonstrations, for legitimate peacefulpurposes.Article 37 [Confidentiality of Communication](1) Confidentiality and freedom of correspondence and communication whether in the form ofletters or through telephone, telegraph and other means, are immune from invasion.(2) The state does not have the right to inspect personal correspondence and communicationunless authorized by the provisions of law.Article 43 [Education](1) Education is the right of all citizens of Afghanistan, which shall be provided up to the level ofthe B.A. (lisâns), free of charge by the state.(2) The state is obliged to devise and implement effective programs for a balanced expansion ofeducation all over Afghanistan, and to provide compulsory intermediate level education.(3) The state is also required to provide the opportunity to teach native languages in the areaswhere they are spoken.Article 44 [Education for Women and Nomads, Illiteracy]The state shall devise and implement effective programs for balancing and promoting ofeducation for women, improving of education of nomads and elimination of illiteracy in thecountry.Article 45 [Unified Educational Curriculum]The state shall devise and implement a unified educational curriculum based on the provisions ofthe sacred religion of Islam, national culture, and in accordance with academic principles, anddevelops the curriculum of religious subjects on the basis of the Islamic sects existing inAfghanistan.Article 46 [Higher Education, Schools](1) Establishing and operating of higher, general and vocational education are the duties of thestate.(2) The citizens of Afghanistan also can establish higher, general, and vocational privateeducational institutions and literacy courses with the permission of the state.(3) The state can also permit foreign persons to set up higher, general and vocational educationalprivate institutes in accordance with the law.(4) The conditions for admission to state higher education institutions and other related mattersFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 55
    • to be regulated by the law.Article 65 [Call for Referendum](1) The President can call for a referendum on important national, political, social or economicissues.(2) Call for referendum shall not be contrary to the provisions of this constitution or for theamendment of it.Regulation of Electoral Campaign:Ending the Electoral Campaign PeriodArticle Eight:Electoral Campaign Period comes to an end 48 hours ahead of polling day. Candidates,political parties, and their supporters cannot continue their campaigns or distribute electoralcampaign materials after ending the Electoral Campaign Period.Electoral Campaign MaterialsArticle Nine:1) Candidates, Political Parties, and their supporters are obliged to observe the followings duringtheElectoral Campaign Period:a) Candidates shall not take any step towards the Electoral Campaign by making use of themedia and arranging rallies before the date officially announced by the commission.Electoral Challenges and Complaints RegulationThis regulation has been approved by the Independent Election Commission (hereafter called theCommission) based on the authority given by Article 66 of the Electoral Law to organizechallenge and complaint related affairs during the various phases of the election process.ApplicationArticle 1:This regulation organizes the challenge and complaint related affairs in the following elections:1. Presidential Elections2. Wolesi Jirga Elections3. Provincial Council Elections4. District Council Elections5. Village Council Elections6. Mayor Elections7. Municipal Assembly ElectionsRight of Challenge and ComplaintArticle 2:The following people may challenge the eligibility of candidates or file their complaints relatedto violations stated in Article 4 of this regulation.1. All eligible votersFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 56
    • 2. Agents of political parties, candidates.ChallengesArticle 3:1) A challenge includes presenting an official document relating to the ineligibility of acandidate on the preliminary list of candidates within the time limits prescribed by theCommission.2) A challenge on the ineligibility of a candidate on the preliminary list of candidates is tobe presented to the Electoral Complaint Commission (ECC). Following the rules ofprocedure of ECC, the Electoral Complaint Commission shall verify the challengespresented to it and if it decides that the candidate must be deleted from the list, ECC shallofficially notify the Commission within the prescribed period.Approval Date: 24.03.2010 Page 2 of 2ComplaintsArticle 4:1) A complaint includes presenting an official document about a violation prescribed inArticle 63 of the Electoral Law, or the regulations or Codes of Conduct approved by theCommission.2) A complaint must be officially recorded and presented to the Electoral ComplaintCommission within 72 hours after the violation occurred.Assistance to the Electoral Complaint CommissionArticle 5:Electoral staff, both in the capital and provinces, must assist the ECC with verifying thechallenges and complaints on a legal basis.Electoral Complaint CommissionArticle 6:Other matters concerning the investigation of challenges and complaints by the ECC shall beorganized according to the rules of procedures issued by ECC.Regulation of Registration of Candidates:ChallengesArticle 6:1) A political party’s agent, a candidate and any Afghan citizen eligible to vote maychallenge the eligibility of candidates included in the preliminary list, after the listis displayed.2) The challenge must be entered on a challenge form and be submitted to theElectoral Complaint Commission within (7) days after the first display of thepreliminary list.3) The Electoral Complaint Commission shall take the final decision on the issue afterevaluating and reviewing the challenge.Electoral Decisions of Complaint CommissionFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 57
    • Article 7:1) The Electoral Complaint Commission shall make its decision based on thedocuments submitted to it regarding the eligibility or ineligibility of a candidateincluded in the preliminary list,2) The Electoral Complaint Commission shall submit its final decision to theCommission regarding the challenges, by the end of the challenge period.Regulation of Voter Registration:Time and PlacesArticle 2:(1) The start and end date for voter registration shall be publicly announced bythe Commission at least 10 days prior to the beginning of the process.(2) To register voters, at least one voter registration center shall be established ineach province.(3) Given its possibilities, the Commission shall establish mobile teams to registerthose prisoners who have not been deprived from their political rights by a court.(4) The Commission shall determine the voter registration stations and publiclyannounce it at least 7 days prior to the start of the process.(5) IEC would make its especial efforts to establish registration stations in thoseplaces where women and people with disabilities can reach them.Article eight:(1) Citizens eligible to vote and agents may challenge a person’s eligibility to register asa voter.(2) The designated supervisor of the voter registration station, after contacting the personagainst whom the challenge was made, on the basis of evidence of both sides, may decidewhether to accept or reject the challenge.ComplaintsArticle 9:(1) Citizens eligible to vote and agents may file a written complaint with the ECC if anyviolation of electoral law or documents approved by the Commission or Secretariathappens or if not satisfied with the decision made by the supervisor about thechallenge.Election law:Article 2Election MethodElections shall be through free, universal, secret, and direct ballot.Article 3Principle of Equality in ElectionsVoters shall have equal rights of participation in the elections.Article 4Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 58
    • Voting SystemEach voter shall have one vote in the elections and shall vote only on his or herown behalf.Article 5Respect for the Principle of Free WillVoters and candidates shall take part in the elections on the basis of their free will.Imposition of any kind of direct or indirect restriction on voters or candidates onthe basis of language, religious, ethnic, gender, tribal, geographical, or socialstatus is prohibited.Article 13Voter EligibilityA person is eligible to vote in the elections if that person:a. is at least 18 years of age on the day of the election;b. has Afghan citizenship at the time of registration;c. has not been deprived from his or her civil or political rights by a court ofcompetent jurisdiction; andd. has been registered as a voter by the Commission.Article 16Voting Location(1) Voters shall vote in the constituency indicated on their voter registration card.(2) The Commission may, on an exceptional basis, provide special facilities fornomads, refugees, internally displaced people, the handicapped and the disabled,members of the armed forces, civil servants and electoral officials.Article 17Voter Identification(1) Voters shall, prior to receiving the ballot paper, prove their identity by showingtheir voter registration cards.(2) The Commission may, on an exceptional basis, provide facilities for theregistration of Afghan refugees in Iran and Pakistan.Article 43Removal of Campaign MaterialsThe Commission shall have the authority to order the removal of campaignmaterials displayed within 100 meters of polling centres on election date.Article 44Prohibition of Carrying Arms at Polling CentresNo person shall carry any weapon or any instrument capable of use as a weapon,at or within 500 meters of any polling centre. The carrying of weapons by securityofficials authorized by the Ministry of Interior shall be exempted from thisprovision.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 59
    • (5) The Commission may provide facilities necessary for the voting of the disabledand the handicapped.Article 46Objections Concerning Voting(1) Before a voter has been handed a ballot paper, an accredited agent of acandidate may object to that voter being entitled to vote or to vote at the pollingcentre concerned.(2) The Chairperson of the polling centre shall determine whether to accept suchobjection and shall note the particulars of the objection and his or her reason forrejecting or accepting the objection in an official record.Chapter IXElectoral Complaints and OffencesArticle 52Electoral Complaints Commission(1) In order to deal with electoral offences, complaints and challenges, anElectoral Complaints Commission (ECC) shall be established with the followingcomposition:a. One member appointed by the Supreme Court;b. One member appointed by the Afghan Independent Human RightsCommission; andc. Three International members appointed by the Special Representative ofthe Secretary General in Afghanistan.(2) The ECC shall elect one of its members as the Chairperson of the ECC.(3) The ECC shall have the jurisdiction to consider and adjudicate the following:a. Complaints relating to electoral offences, including violations of the law inthe conduct of the electoral process, provided that the complaint has beenreceived prior to the certification of the results of the election; andb. Challenges to the list of candidates or to the eligibility or qualifications ofa candidate raised during the electoral process.(4) The ECC shall develop and implement its own procedures for considering andadjudicating complaints.(5) The ECC may consider matters otherwise within its jurisdiction on its owninitiative and in the absence of a formal complaint or challenge.(6) Decisions of the ECC shall be final.(7) The ECC shall discontinue its work no later than 30 days following thecertification of results.(8) In order to deal with complaints arising in the provinces, the ECC maydelegate its authority to commissions at provincial level, which commissions shallconsider complaints within their jurisdiction and in accordance with theprocedures established by the ECC.Article 53Electoral OffencesThe following acts shall constitute Electoral Offences:Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 60
    • a. Providing false information to the Commission, any commissionestablished by the Commission, or the Electoral Complaints Commission;b. Threatening, intimidating or attacking the dignity of a voter or candidate ora journalist covering the election in any way;c. Impeding anyone, including accredited observers and agents, fromparticipating in the electoral process;d. Committing fraud in voting or vote counting;e. Offering or receiving a payment or other benefit for the purpose ofinfluencing the electoral process;f. Possessing, or attempting to obtain, more than one voter registration card;g. Voting or attempting to vote using a forged or altered card or the card ofanother person;h. Changing, replacing, stealing, or destroying electoral documents withoutlegal authorization;i. Manufacturing false voter registration cards, ballots, or official forms;j. Obtaining a voter registration card under false pretences;k. Attempting to vote more than once in an election;l. Interfering with election materials or ballot boxes without due authority;m. Interfering with electoral officials in the performance of their duties;n. Violating the Code of Conduct for Political Parties, Candidates and Agents,or the Code of Conduct for Electoral Officials;o. Making use of funds originating from illegal activities;p. Making use of foreign funds for the purpose of influencing the electoralprocess;q. Inciting or provoking other persons to commit an Electoral Offence;r. Violating provisions of this Law or other legal instrument governing theelectoral process; ands. Failing to comply with any order of the Commission, the ECC, or the MC.Article 54Sanctions and Penalties(1) Taking into consideration the circumstances, the ECC may, if it determinesthat an Electoral Offence has occurred:a. Issue a warning to, or order, the offending individual or organization, totake remedial action;b. Impose a fine not to exceed 100,000 Afghanis;c. Prior to the certification of results, order a recount of ballots, or a repeat ofthe voting;d. Remove a candidate from the candidates list, if there are justified reasons;e. Invalidate ballot papers not meeting the conditions for validity, or order thecount or recount of a ballot paper or a group of ballot papers; andf. Prohibit an offending individual from serving in the Commission or itsSecretariat for a period not exceeding 10 years.(2) The ECC may impose sanctions on a political party or candidate for ElectoralOffences committed by its members or supporters. In imposing such a sanction theECC shall take into consideration any evidence demonstrating that the politicalFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 61
    • party or candidate made reasonable efforts to prevent its members and supportersfrom committing Electoral Offences.(3) In addition to imposing the above sanctions, the ECC may refer the offenderto the Public Prosecution Office if it has evidence that the offender hasperpetrated a criminal act.Law on Mass Media:Article Five:Every person has the right to seek and obtain information. The government shall providethe information sought by citizens, except the information sought is a military secret thatits disclosure endangers the national security and interests.Regulation of Political Parties:Article 13 1. Afghan citizens who have completed the age of 18 and have the right to vote can acquire membership of a political party. 2. A person shall not be member of more than one political party at a time. 3. Judges, prosecutors, leading cadres of the armed forces, officers, non-commissioned officers, other military personnel, police officers, and personnel of national security, shall not be members of a political party during their tenure of office.Electoral Fairness Audit Results for Voter Say:The FDA electoral fairness audit team did not reach consensus on a score.The scores were totaled and averaged, with each score having equal weight.Total score: 22.5 percentRational for Score:Afghan voters have the constitutional right to freedom of speech, assembly, and demonstration,within adherence to the principles of Islam and no defamatory and dishonorable statementsagainst individuals. (Source: Afghan Constitution, Articles 33-36; Election Law, Article 5) (Withreference to the Afghan Penal Code, an individual who is convicted of defamation will receiveup to two years in prison or a fine not exceeding 20,000 Afghanis. (412.80 USD)) (Source:Afghan Penal Code, Section on Defamation)Afghan adult citizens have the right to vote and run as candidates. (Source: Political Parties Law,Article 13(1))Voters must be at least 18 years old and not be deprived of civil or political rights by court.(Source: Political Parties Law, Article 13(1))Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 62
    • Afghan citizens have free education up to the level of bachelor degree. (Source: AfghanConstitution, Article 43)Only the President can call a referendum, unlike Bolivia for example, in which citizens can callreferendums provided they have enough public support. (Source: Afghan Constitution, Article65)Electoral campaigns are at least 120 days and end 48 hours before the election day. (Source:Afghanistan Regulation of Election Campaigns, Election Campaign Period, Article 3; Regulationof Electoral Campaign, Article 8)Afghan citizens have the right to electoral complaints provided they are submitted within 72hours of the violation, and in the case of ineligible candidates, within 7 days of the display ofcandidate lists. (Source: Election Law, Article 9)Mobile electoral units will be used to register prisoners who have not been deprived of politicalrights. (Source: Regulation of Voter Registration, Article 2)The state will make special efforts to establish registration stations which are accessible towomen and the disabled. (Source: Regulation of Voter Registration, Article 2)The Independent Electoral Commission may provide special voting locations for nomads,refugees, internally displaced persons, handicapped, and disabled, members of the Armed Forces,civil servants, and electoral officials. (Source: Election Law, Article 16)The Independent Electoral Commission may provide facilities for the registration of Afghanrefugees in Iran and Pakistan. (Source: Election Law, Article 16)Electoral offenses included threats to voters, impediment of voters, and bribery of voters.(Source: Election Law, Article 53)Voters are entitled to seek and obtain information from government, except information whichcompromises national security. (Source: Law on Mass Media, Article 4)The state imposes a cap on electoral donations at 2 million Afghanis (4128 USD) per year foreach donor. (According to the World Factbook, in 2010, the Afghanistan GDP per capita is 900USD, the unemployment rate is 35 percent including those individuals living below the povertyline, and the mean graduate pay is .56 cent per hour.) (Source: The World Factbook, Afghanistan2010)There are no restrictions on donations from legal entities. (FDA researchers could find no laws orregulations on donations from legal entities.)The public and private mass media is only regulated for “fair and unbiased” electoral contentduring the election period. (Source: Mass Media Code of Conduct)Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 63
    • There are no concrete mechanisms to monitor candidate and party finances and make thempublic. (Source: Ennis, David, “Analysis of the Electoral Legal Framework of Afghanistan”,IFES Legal Advisor, February 28, 2006; FDA researchers could find no laws or regulations onmonitoring and enforcing candidate and party electoral finances)There are no spending limits on third party electoral spending which is independent of acandidate or party. (FDA researchers could find no laws or regulations on third party electoralspending.)The score of 22.5 percent means that legislative basis for voter say is almost significantly moreunfair than fair. Although on the surface, the Afghan electoral system appears fair for voters, anyfairness is more than offset by unfairness. The lack of regulation of the public and private mediaoutside of the electoral period, lack of transparency of electoral finances, and age, financial, andsocial barriers to entry for candidates trump electoral rights and political representation forwomen, disabled, and nomads, voter assistance measures, and freedom of expression andassembly within the confines of Islam. The Afghan electoral system overall favors significantly awealthy, privileged class as represented by the government, and therefore, voters who areopposed to this class or the ruling elites are inconsequential. There is far more to the fairness ofan election than universal suffrage and the basic structures of government.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 64
    • Chapter Five: Audit ResultsChapter five will set out the FDA’s scores for each of the areas of the Afghan electoral system asset out above.1. Research and audit results for the fairness of Afghan laws and regulations on the politicalcontent of media including newspapers, broadcasters, online media, before, during, and afterelections.5/102. Research and audit results for the fairness of Afghan Laws and regulations on candidates andparties influence before, during and after elections.2.2/103. Research and audit results for the fairness of Afghan laws and regulations on electoralfinance.0/104. Research and audit results for the fairness of Afghan laws and regulations on voter say before,during, and after an election.2.3/10Total: 23.75 percentFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 65
    • Chapter Six: AnalysisChapter six will provide a brief analysis of the FDA’s findings.With an overall electoral fairness audit score of 23.75 percent, Afghanistans democracy is almostsignificantly more unfair than fair. 20 percent is the threshold for significant unfairness. Withreference to the FDA scoring scale, 23.75 percent equates to an unacceptable failing grade: (F)unacceptable laws and regulations for the country (i.e. numerous major deficiencies in most ifnot all of the following: laws and regulations of the political content of media (includingbroadcasters and the press), electoral finances, candidate and party influence, and voterinfluence.) (Grade less than 50%).To put Afghanistans electoral fairness score in context, Afghanistan ranks 17 out of 27 countries:1. France 91.75% (A+)2. Venezuela 85% (A+)3. Bolivia 78.75% (B+)4. Norway 58.5% (D+)5. New Zealand 54.75% (D)6. Spain 42.25% (F)7. Finland 40.75% (F)8. Lebanon 37.5% (F)9. Iraq 35.25% (F)10. Denmark 35% (F)10. Russia 35% (F)12. Sweden 34.5% (F)13. Argentina 32.5% (F)14. United States 30% (F)15. Canada 25.75% (F)16. Azerbaijan 25% (F)17. Afghanistan 23.75% (F)18. Mexico 22.5% (F)19. Tunisia (under Ben Ali) 10% (F)20. Cameroon 2.5% (F)21. Yemen (under Saleh) 1.25% (F)22. Bahrain 0% (F)22. Egypt (under Mubarak) 0% (F)22. Iran 0% (F)22. Libya (under Gaddafi) 0% (F)22. Saudi Arabia 0% (F)22. Syria (under Bashar al-Assad) 0% (F)Afghanistans democracy is only 2 percent behind Canada federal democracy and 6.25 percentbehind the United States federal democracy. However, the United States and Canada are clearlyin the failing zone for electoral fairness.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 66
    • Afghanistans only passing score for electoral fairness is 50 percent for the medias politicalcontent. However, according to the FDA scoring scale, the 50 percent score is unacceptable, andmeans that there is a balance between fairness and unfairness.Afghanistans other scores, 22.2 percent for candidate and party influence, 0 percent for electoralfinance, and 22.5 percent for voter say are clearly in the failing zone.The 0 percent score for electoral finance means that FDA auditors could not find any overallelement of fairness in the Afghanistans electoral finance laws and regulations.As mentioned in the methodology section on page 2, the FDA auditors allow for overlap betweenthe four sections of electoral fairness, so that as an example, Afghanistans electoral finance lawsimpacted negatively the candidate and party influence and voter say sections.Afghanistans areas of electoral fairness such as women political representation and regulation ofpublic and private media during the election period for impartiality, fairness, and balancedcoverage, are offset by unfairness in large systematic areas such as electoral finance andregulation of public and private media outside of the election period, and candidate registrationrequirements.Afghanistan is devoid of any regulation on media ownership concentration, and therefore, it issusceptible to oligopoly.Afghanistan is devoid of any proportional representation, which means political representativesare less likely to represent the will of the people.The lack of monitoring and public transparency of electoral finances cancels out any restrictionson electoral finances such as a ban on foreign and government electoral donations.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 67
    • Chapter Seven: ConclusionChapter seven will provide a summary of the FDA’s findings.Afghanistan faces severe challenges in its relatively new democracy (i.e. Afghans first electionstook place in 2004). Without considering the fact that democracy was imported to Afghanistanrather than emerge from the will of Afghans, Afghanistans democracy is on trajectory which willlead to increasing authoritarianism within the shell of a democracy.The source of Afghanistans authoritarianism is the lack of regulation of the public and privatemedia outside of the election period, lack of transparency of electoral finances, and barriers topolitical positions which favor a wealthy, privileged Afghan class. For example, presidentialcandidates must be at least 40 years old, have no criminal record, pay 50,000 Afghanis to run asa candidate, have the support of 10,000 citizens, and will not be returned the 50,000 Afghanisunless the candidate receives at least 15 percent of the vote. Also, media access is based onability to pay.Within this backdrop, the Afghan government which was originally granted political power bythe US and its allies on June 24, 2002, without the consent of the Afghan people as a whole,administers the elections.Basically, the Afghanistan political system favors a status quo represented by the Karzai regimewhich was installed by the Americans and its allies in 2002.The Afghan shell of democracy is characterized by universal suffrage, basis structure ofgovernment including checks and balances, and elements of fairness such as politicalrepresentation for women and disabled persons, voter assistance to Afghan groups, andregulation of public and private media during the election period.The lack of regulation of public and private media outside of the election period coupled with thelack of transparency of electoral finances, will entrench the authoritarian government throughgreater control of the media through organizations connected to the government and corruptionof electoral finances. Unfortunately, the most unfair elements of US federal democracy,unregulated political content of private media including the lack of ownership concentrationrestrictions and electoral finance laws which favor significantly the wealthy and legal entities,has been implanted in Afghanistan.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 68
    • Chapter Eight: RecommendationsChapter eight will set out the FDA’s recommendations on how Afghanistan can improve itselectoral fairness score and thereby its electoral fairness.The Afghanistan is a troubled country, with the ongoing war between the Taliban and the Karzairegime, a democracy imported by foreigners, and occupation of the country by foreigners. Theway forward is problematic, because until the foreigners leave the country and as long as theKarzai regime remains in power, there will be no way of identifying the will of Afghans as awhole.For Afghanistan to move forward, the will of the Afghan people must overcome the occupationand the Karzai regime. In other words, the Afghan people need to correct the mistake of allowingboth the importation of democracy to Afghanistan and political control by Karzai and hisassociates.The will of the Afghan people as a whole is only the thing that matters. Whether that will seeks atrue Afghan democracy or an Islamic theocratic state for example, only the Afghan people mustdecide.Other reforms such as regulation of public and private media outside of the election period, fairbarriers to entry for political candidates, transparency of electoral finances, and fair caps onelectoral donations and spending may be relevant at some point.If Afghanistan continues its course, the country will become increasingly polarized through theauthoritarianism of the Karzai regime and its disconnect with the people of Afghanistan.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 69
    • References:Afghanistan Election LawAfghanistan Mass Media Code of ConductAfghanistan Penal Code 1355 (October 7, 1967)Afghanistan Political Parties LawAfghanistan Regulation on Electoral Campaigns 2010Afghanistan Regulation on Electoral Challenges and Complaints 2010Afghanistan Regulation on Polling 2010Afghanistan Regulation on Registration of Candidates 2010Afghanistan Regulation on Voter Registration 2010Ennis, David, “Analysis of the Electoral Legal Framework of Afghanistan”, IFES Legal Advisor,February 28, 2006Constitution of Afghanistan 2004Decree of the President of the Islamic Republic of Afghanistan on Noninterference in the ElectoralAffairs of Elections 1388 (2009)EU Election Observation Mission Report on Afghanistan 2005Law for the Prosecution and Punishment of Bribery 15 Hoot 1351Law on Mass MediaLaw on the Structure, Duties, and Mandate of the Afghanistan Independent Human RightsCommissionMass Media Law of Afghanistan, 2006Thomas, Johnson, “Strategic Insights: The Loya Jirga, Ethnic Rivalries and Future AfghanStability”, Center for Contemporary Conflict, August 6, 2002.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 70
    • Appendix:FDA Global Audit Results as of October 11, 2011:Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 71
    • FDA Global Electoral Fairness Audit Results Overall Electoral Fairness Audit Scores <-- failing range|passing range --> 0% 20% 40% 60% 80% 100% France Venezuela Bolivia Norway New Zealand Spain Finland Lebanon Iraq Denmark Russia Sweden Argentina United States Canada Azerbaijan Afghanistan Mexico Tunisia Cameroon Yemen Bahrain Egypt Iran Libya Saudi Arabia Syria ©2011 Foundation for Democratic AdvancementFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 72
    • FDA Global Electoral Fairness Audit Results Laws and regulations on the equality of political content of the media and broadcasters before, during, and after an election <-- failing range | passing range --> 0% 20% 40% 60% 80% 100% Russia Venezuela France Bolivia Norway Lebanon Spain Afghanistan Iraq Azerbaijan Denmark Finland Sweden United States Canada Argentina Tunisia New Zealand Yemen Bahrain Cameroon Egypt Iran Libya Mexico Saudi Arabia Syria ©2011 Foundation for Democratic AdvancementFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 73
    • FDA Global Electoral Fairness Audit Results Laws and regulations on the equality of candidate and political party influence before, during, and after an election <-- failing range | passing range --> 0% 20% 40% 60% 80% 100% France Venezuela New Zealand Bolivia Norway Spain Finland Lebanon Sweden United States Iraq Azerbaijan Afghanistan Argentina Denmark Russia Canada Mexico Bahrian Cameroon Egypt Iran Libya Saudi Arabia Syria Tunisia Yemen ©2011 Foundation for Democratic AdvancementFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 74
    • FDA Global Electoral Fairness Audit Results Laws and regulations on the equality of electoral (campaign) finance <-- failing range | passing range --> 0% 20% 40% 60% 80% 100% France Venezuela Bolivia New Zealand Finland Norway Argentina Denmark Lebanon Sweden Tunisia Azerbaijan Spain Cameroon Canada Mexico United States Afghanistan Bahrain Egypt Iran Iraq Libya Russia Saudi Arabia Syria Yemen ©2011 Foundation for Democratic AdvancementFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 75
    • FDA Global Electoral Fairness Audit Results Laws and regulations on the equality of voter influence before, during, and after an election <-- failing range | passing range --> 0% 20% 40% 60% 80% 100% France Bolivia Venezuela Argentina Iraq Mexico Spain Canada Denmark Finland New Zealand United States Sweden Lebanon Norway Russia Afghanistan Azerbaijan Bahrain Cameroon Egypt Iran Libya Saudi Arabia Syria Tunisia Yemen ©2011 Foundation for Democratic AdvancementFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of Afghanistan Page | 76