AIHRC-UNAMA Joint Verification of Political Rights (Second Report 8 July - 24 August 2004)

Second Report 8 July – 24 August 2004

United Nations Assistance Mission in Afghanistan UNAMA

A. Introduction

At the request of the Government of the Islamic Transitional State of Afghanistan and with the endorsement of the Berlin Conference, the United Nations Assistance Mission in Afghanistan (UNAMA) and the Afghan Independent Human Rights Commission (AIHRC) are verifying the exercise of political rights throughout the country with a view to ascertaining the situation of political rights in the different provinces of the country; making appropriate recommendations to the authorities; and thus helping create an environment conducive to the holding of free and fair elections.

The first report provided the general trends observed and mapped out the types of violations that constrain the exercise of political rights in each region. This second report builds on these findings and provides highlights of the key developments and incidents during this reporting period. The period under review saw the completion of two important components of the electoral process, namely voter registration and the establishment of the final list of presidential candidates. Both were designed to promote the exercise of the fundamental political right to elect and be elected; and both bear the imprint of the political environment in which they have unfolded. This report strives to learn lessons from this stage of the electoral process and, on this basis, formulate recommendations for the next stages, including the electoral campaign and voting itself.

B. General Environment

Overall, there has been little change to the general pattern of trends observed in the last reporting period. The first verification report characterized the environment as follows:

A nation-wide pattern of self-censorship among political formations, which are often not willing to take advantage of the freedoms granted under the new constitution for fear that they will suffer reprisals. This fear is often warranted since local authorities often consider independent political organizations and views to be a form of subversion that must be contained or suppressed.

A lack of information and understanding, particularly in rural areas, about the electoral process.

The strict control that local factions exercise over government radio and television outside Kabul.

Beyond these common features, the political environment is seen to vary widely from region to region. Kabul and the Eastern region continue to be characterized by a generally more open political environment in terms of political expression and association relative to the rest of the country. In contrast, the Northeast, South, and the West factional leaders and government authorities are seen to play a key role in limiting public space. In the East, Southeast and South, attacks by antigovernment forces have also served to limit the exercise of political rights.

C. Situation of Political Rights

1. Major Developments

In the weeks leading up to the 26 July deadline for presidential candidate applicants to submit their forms, the supporters of the hopeful candidates centered their efforts on collecting the required 10,000 copies of registration cards. A number of complaints and concerns related to these activities were reported to UNAMA and AIHRC offices throughout the country, including incidents of forced confiscation of cards by commanders, state authorities and private individuals. Subsequently, the Joint Verification Unit instructed all its offices to focus its efforts on obtaining further information regarding this matter. [1]

Twenty-three individuals submitted applications for presidential candidacy to the Joint Electoral Management Body (JEMB). During the challenge period, over one hundred were filed challenges with the JEMB concerning these presidential candidate applicants. The JEMB inquiry process included gathering information from relevant government and international agencies- including the Ministries of Foreign Affairs, Interior, Defense, Finance, the Directorate for Security (NDS), the Supreme Court and Diplomatic Missions- and reviewing the body of evidence gathered. This process resulted in the following:

· Four applicants were rejected because their application did not include 10,000 copies of registration cards, as required by the Electoral Law.

·One applicant was disqualified because he had dual citizenship. Two vice-presidential candidates were also found to have dual citizenship and replaced by their presidential candidates. ^[2]

·One applicant chose to renounce his double nationality in order to remain as a vice-presidential candidate.

·Two prospective presidential and one vice presidential candidate were challenged on the grounds that they had active ties to private militias or factional arms. The JEMB addressed this issue by requiring the applicants to transfer the command of military units linked with them to the Afghan National Army (ANA). The candidates have agreed to these terms and have submitted agreements to this effect. The JEMB and UNAMA will be monitoring adherence to this provision.

The vetting process resulted in eighteen candidates from a wide spectrum of backgrounds, ethnic groups and political affiliations. It is particularly noteworthy that one presidential and three vice-presidential candidates are women. This diversity is encouraging as it reflects that the political environment has allowed a healthy level of pluralism to emerge.

Fifteen of these presidential candidates have come together and formed the Coordination Committee of Presidential Candidates to challenge the government and the JEMB on a number of issues related to the electoral process. Beginning on 18 August, this group has convened a series of meetings and produced a number of demands, including criticizing several aspects of voter registration and calling for the resignation of the President prior to the elections, the dissolution of the current JEMB and the establishment of a new electoral commission. They have also threatened to boycott the elections unless steps are taken by the President to respond to their demands. The President has responded that the Constitution provides for the President of the Islamic Transitional State of Afghanistan to continue his duties until the elected President has taken office. The JEMB has also met with some of the candidates and issued a clarifying statement regarding the status of the electoral commission and issues related to the registration process.

The JEMB has also formed a complaints committee, comprised of four national and one international member, to receive and respond to complaints about aspects of the electoral process, particularly relating to the campaigning period. The procedures for this work are currently being formulated by the committee.

Throughout most of the country, voter registration closed on 15 August. In some districts of the South and the Southeast where registration started late due to insecurity, registration was extended for another five days and came to an end on 20 August. While final figures will take some time to compile, the broad picture indicates that 10.5 million people registered; over forty one percent of them being women. Tragically within the nine-month registration campaign twelve electoral workers were killed and more than thirty injured in attacks by extremists bent on derailing the election process. [3]

In preparation for the elections, decisions have been made by three international organizations, including the European Union (EU), the Organization for Security and Cooperation in Europe (OSCE) and The Asian Network for Free and Fair Elections (ANFREL) to deploy international observers/experts throughout the country; to evaluate the environment during the pre-election period; and/or to observe elections on polling day. In addition, Afghan civil society organizations have formed the Foundation for Free and Fair Elections of Afghanistan (FEFA) and will be deploying observers to all 34 provincial centers. [4]

2. Rights and Principles

Freedom of Expression

A six-member Media Commission was established and became operational on 11 August, as provided by the Electoral Law. The Commission is comprised of three Afghans who are familiar with the media in Afghanistan; two internationals with expertise in media monitoring and regulatory compliance mechanisms; and one JEMB member. This body is primarily responsible for media monitoring; overseeing fair reporting during the electoral campaign in accordance with the code of conduct for journalists and regulations for media; receiving and investigating complaints; and formulating recommendations to the JEMB.

The Minister of Information and Culture has announced that Radio Television Afghanistan will allocate 20 minutes of airtime per evening for a discussion of a particular candidate's agenda and platform. Each candidate will receive at least one time slot during the course of the election campaign to present their views and to have their presentation published in state run newspapers.

While these initiatives have been welcome, candidates have expressed concerns that the President still has an unfair advantage in using state media and resources for campaigning purposes. It is hoped that the upcoming publication by the JEMB of further instructions regulating access to the media, campaign financing and the use of government resources for campaigning purposes will help create an environment of clear and precise rules, which will foster accountability, transparency and therefore the credibility of the process.

"Awaz," a national NGO is offering, with the support of the JEMB secretariat and the United Nations, some free media resources-including a 3 minute audio clip and 3 minute video clip and the design and production of a poster- for all the candidates to develop their own campaign material.

There have been some improvements in the Northeast and West where the media is seen to be tightly controlled by the factional elements in power. In the last month, verification reports indicate small improvements in reporting on social and political issues in these regions. In Herat, the state owned media has begun publishing and broadcasting documents, decrees and regulations pertaining to the electoral process. The verification team also found that some radio and press in the Northeast are allowing wider latitude on reporting on socio-political issues, so long as the coverage does not appear critical of the key factional leaders in the region.

While Kabul is seen to be relatively conducive to freedom of expression, isolated cases of intimidation and harassment due to opinions expressed in public have been reported. For example, on 12 July a group of armed men forcefully entered the house of Deputy Minister of Culture and Information, Abdul Hamid Mubarez, allegedly to intimidate the Minister and his family. While the authorities could not fully ascertain that this incident was politically motivated, the Deputy Minister reported that he was targeted by conservative elements due to the fact that he had published a number of articles criticizing the meetings that took place between jihadi leaders and President Karzai in early June of this year. The authorities have arrested six suspects and have also provided the Deputy Minister with additional security.

Freedom of Association and Freedom of Assembly

Self-censorship continues to be one of the main limiting factors in the exercise of political rights, particularly in the Northeast, North, South and West. This tendency, reinforced by the dominant role of commanders in the regions and sometimes heavy-handed approaches to political activities by government actors, has resulted in a lack of public initiative by political parties and actors and an inability to build on the political momentum and to expand political space. In many cases mistrust and lack of awareness about the electoral process -on the part of both political actors and government officials -amplify this problem.

To address this concern and to expand political space, UNAMA and AIHRC offices have held a number of political roundtables in Mazar, Kunduz, Badakhshan, Herat, Nangarhar, Parwan, Kapisa, Wardak, Panjshir, Logar, Kabul, Helmand, Nimroz and Kandahar. These events brought together local government authorities- including the Governor, law enforcement officials, representatives of political parties and other relevant actors- and served as a forum to disseminate essential information on laws and regulations on the exercise of political rights as a means of facilitating information-sharing among authorities and political parties. UNAMA and AIHRC officers have also been deployed to districts throughout the provinces to convey information on the exercise of political rights. These activities will hopefully be conducive to the opening up of political space.

To date, 40 political parties have been registered out of the 68 that have submitted their applications. In order to ascertain that political parties do break all relations with existing armed units as required by the law, the Ministry of Justice has developed an additional requirement for all applicants with present/past military wings to sign a commitment to support and adhere to the DDR process. Almost all parties with factional backgrounds and ties have signed an agreement to this effect.

While this is viewed as an important step towards advancing the disarmament process, many of the units formerly connected with these parties have either only partially complied or failed to comply with previous instructions from the Ministry of Defense to disarm. For instance, Division 35 linked with Wahdat-Islami Milli Afghanistan has only partially complied; Divisions 70, 82 and 95 belonging to 8^th army corp has not yet complied; Division 55 in Takhar has not complied; Division 34 and Division 14 of Wahdat-i-Islami Afghanistan have partially complied; Divisions 10 and 55 linked with Daw'at Islam have not complied; and Divisions 26, 20 and VII army corp linked with Jamiat-i-Islami have not complied to date.

Principle of Non-Discrimination

The report has already noted that while the process of establishment of the final list of presidential candidates was not exempt from difficulties, the ethnic and political diversity of the 18 candidates and their vice-presidential candidates indicates that political or ethnic agendas did not serve as a factor in the selection process.

With one female presidential candidate and three female vice-presidential candidates, the representation of women in presidential elections illustrates a significant advance in women's participation in the political process. It is true, however, that the percentage of women candidates – roughly 15% - lags far behind the percentage of female representation in parliament as provided by the Constitution, namely over 25%.

With regard to voter registration, the percentage of female registration has been higher than expected, particularly in more conservative areas such as the East and the Southeast. Women in the South however lag behind at approximately 19%. The common assumption that cultural restrictions are the basis for the low representation of women is contradicted by the fact that even in very conservative areas of the country the registration of women has reached the national average of about 40%. Insecurity and threats by antigovernment forces appear to be the overriding factor for the low registration of women as well as men in the region.

Against this background, a number of cases of discrimination have been reported. In some of these cases the actions of local authorities have corrected the situation. For example, in the East the verification team confirmed two cases of discrimination in Laghman, both related to women's registration. In early July, a commander attempted to prevent women from registering in Paryana village of Alingar district, Laghman. Police intervened in the matter and women's registration continued. A mullah from Salau village of Ali Shang district, Laghman announced via a mosque loudspeaker that the registration of women should not take place in the area. AIHRC and MOWA Laghman intervened and the local shura convinced the mullah to cease such activities.

A local government official was witnessed making discriminatory remarks against women running for office and tore the campaign posters of presidential candidate Masuda Jalal in the center of Kishm, Badakhshan. The verification team is raising this issue with local authorities.

Freedom of Movement and Principle of Non-Intimidation

During the period under review, there have been few reported cases of violation of the freedom of movement, but threats by extremist groups against people wanting to register – male and female – have continued. The most serious has been the kidnapping and killing of several passengers on a bus traveling in the province of Zabul as a reprisal for their possession of a registration card; and the attack against a registration site located in a mosque in the province of Ghazni. Such acts have no doubt been a factor in the low registration in Zabul.

In addition to direct action against the population, extremist groups have focused their attacks on the registration staff, leaving a toll of 12 killed – of whom four women – and 33 wounded during the period from 1 May-20 August. Following is a partial list of these attacks: On 29 July a JEMB vehicle on the way from Chaghcharan in Ghor Province towards Murghabi village in the north, was stopped at gunpoint by unknown men. The two national staff members of the Electoral Secretariat were abducted and the vehicle seized. The JEMB team later escaped and was taken by villagers to Chaghcharan. On 6 August, four vehicles of the JEMB Secretariat and the Police were attacked near the village of Yakhdan in Kijran District, Uruzgan Province. During the attack two JEMB staff were killed. In the South, a JEMB team leader in Uruzgan province and a village chief traveling on motorbikes were ambushed and killed by unidentified assailants on 24 July.

Electoral sites and JEMB offices have increasingly been targeted by antigovernment forces. As mentioned above, on 28 July a bomb exploded at a voter registration site located in a mosque in Ghazni Province, killing two people including a registration staff. The incident also left seven other people wounded. On the 17 August, the Paktia JEMB electoral office came under attack, resulting in the injury of two guards. Two days later, two policemen were killed and five injured in an explosion in the JEMB office in the western province of Farah.

It is noteworthy that despite these attacks, the population has remained highly motivated and largely undeterred.

Principle of Non-Partiality

Three applicants for presidential candidacy filed complaints against the JEMB for publicly releasing information about the challenges submitted against them in the vetting process. They noted that they had been singled out and highlighted that the challenges filed against several other candidates were not mentioned by the JEMB.

As noted in the last verification report, the political movement Hezb-e Muttahed-e Milli-e Afghanistan has not been registered by the Ministry of Justice despite meeting all the formal conditions for registration. In an effort to address this impasse, the party submitted a complaint to the Supreme Court. On 27 July, the Supreme Court ruled that the case should be returned to the MOJ where a resolution needs to be reached on the status of the party. As no legal basis has been provided for the exclusion of this party, it is becoming increasingly clear that the non-registration of this party is due to a political judgment. It is incumbent on the Ministry of Justice to rectify this situation.

Following the Ministry of Interior, the Ministry of Defense has issued instructions to all personnel of the armed forces directing them to provide security; to protect the rights of individuals; and to maintain impartiality. This is a welcome development that brings the Government of Afghanistan closer to compliance with some of the commitments given at Berlin.

In Baghlan, various sources have reported that Commander Jalal has instructed people in Khinjan and Doshi districts to vote for a particular presidential candidate. While reports do not indicate direct use of force, the commander is a personality that many people fear. The verification team brought this matter to the attention of the Governor, who promised to investigate and take action.

E. Voter Registration

Some concerns have been expressed- most recently by political parties and candidates- about the registration process. Allegations include biases in the opening and closing of registration sites; the registration of minors by JEMB officials; multiple registration and the selling of blank voter registration cards in the bazaar. Highlights of the verification team's findings listed below:

· The deployment of over 1400 registration teams since the beginning of May has undoubtedly suffered from a number of shortcomings, including logistical difficulties. In addition, in the East, Southeast and South, anti-governmental attacks on security and election workers have hampered registration efforts. The province of Zabul, in which registration is barely over 50% of the target, has been most affected.[5]

· However, early imbalances in registration among the various provinces have also been corrected for the most part, with the notable exception of Zabul. There does not appear to be evidence of political bias towards one particular ethnic or political group and or any indication that a sizeable group was left under-registered for reasons other than security.

· Evidence presented to the verification team confirms that multiple registration and the registration of minors has probably been a factor in the registration process. However, it is not possible to determine the scale and the extent to which it affects the registration numbers. While the JEMB has acknowledged that multiple registration is an issue, they have reported that measures -such as marking voters' fingers with indelible ink to prevent people from voting more than once- will be in place on polling day to ensure that no one votes more than once.

· In regard to the selling of blank voter registration cards, complainants have thus far failed to produce any evidence to support this allegation. The verification team has repeatedly requested the complainants to provide precise information -including the site where cards are sold and a sample of the card purchased- but has not received anything to date.

E. Confiscation, Forced Seizure and Destruction of Voter Registration Cards

In accordance with article 44 of the Electoral Law, all candidates for the Presidential, Wolesi Jirga, Provincial and District Council elections must be supported by a designated number of voter registration cards. Accordingly, aspiring candidates for these elections have tasked their supporters to collect cards in support of their candidature. This has given rise to widespread complaints of forced confiscation of voter registration cards throughout the country.

Trends and cases are noted below:

· In the North and the Northeast, the verification team received several complaints from across the region of commanders and public officials improperly obtaining voter registration cards through pressure, intimidation and force. While in most cases there is no evidence of overt intimidation or use of force, the reputation of the commanders involved in the collection of registration cards, and their involvement in past crimes and violations has led to fears of reprisals and acquiescence by the population.

· In the East, a commander in Shinwar district confiscated voter registration cards from three persons and forcibly took and destroyed the cards of those persons who refused to hand over their cards. The verification team informed the Governor of this matter. Follow-up action by the Governor included a directive issued to all commanders to cease these activities.

· The verification team received reports that on 18 July a nephew of the Nangarhar Police Chief (and Corps Commander) confiscated a large number of photocopies of voter registration cards and the cards themselves from political party representatives. According to the victims and witnesses, the armed men assaulted those party members who refused to hand over the cards. This issue was discussed with the Police Chief who promised that he would address this matter and put an end to these incidents. Since then, no further complaints have been lodged about this person.

· In late July, members of the JEMB Kuchi registration team in Char Asyab in Logar drove to Pul-e Alam in a private vehicle in the evening with a voter registration kit and a camera. They collected voter registration cards and issued new ones with different district names (Char Asyab and Mussai). One of the individuals was arrested.

· In the South, separate incidents have been reported of men claiming to be security officials threatening and extorting money from individuals who did not carry registration cards on the Kandahar – Herat highway. Those who failed to present their cards were fined as much as 50 to 500 Afghanis. UNAMA has followed up on this issue with the Governor of Kandahar and the official in charge of highway checkpoints. They have both promised that this matter will be further investigated.

· The chief of Security in Helmand also confirmed that extortion related to not having registration cards is prevalent along the way from Kandahar to Lashkargah. The Governor and the deputy police have reported that they have already changed some of the military officers at these checkpoints, after having these types of incidents reported by the Ministry of Interior.

The legal provision regarding the collection of cards was intended as a means of determining whether an applicant for presidential candidacy enjoyed popular support. However, political realities in a number of districts are such that the collection of cards has often become a function of the influence of local leaders rather than a reflection of the support enjoyed by individual candidates. In areas where local commanders exert influence, they are often able to impose their will upon people without the use of overt force. Their reputation and their involvement in past crimes and violations are enough to bring about compliance by the population. In parts of the country where community leaders exert influence, traditional approaches to decision-making continue to prevail over the personal choice that is to be at the center of the democratic electoral process.

These problems are compounded by the absence of rule of law in many parts of country and a lack of understanding and awareness about the laws that regulate the electoral process and protect political rights. In some occasions, local authorities have used this vacuum of information and experience to manipulate the population to achieve their own agendas.

D. Conclusions and Recommendations

Voter registration and the collection of registration cards in support of the registration of presidential candidates have provided a vivid illustration of some of the positive and negative traits of the current situation of political rights in the country.

On the one hand, this process has served as a tool for unprecedented level of popular mobilization around the political process. Massive popular involvement in the registration process has fulfilled one of the pre-conditions for the presidential election to be a genuinely democratic exercise. In addition, the fact that a broad spectrum of groups and political visions is represented by the 18 presidential and vice-presidential candidates illustrates that the election has the ingredients needed to be an inclusive and pluralistic process.

At the same time, the shortcomings that have been identified during verification point to several problems that must be addressed in the coming weeks if the election is to realize its democratic potential. Some of these problems have already been stressed in the previous report, namely the problem of insecurity in those areas where extremist groups are bent on undermining by violent means a political process that they fear; the information deficit, which exposes voters to manipulation and generates a climate of uncertainty for political parties; and the rule of local commanders over communities, which has the potential to distort what is to be a free expression of popular will.

To succeed, the Afghan Government, the international community, the electoral authorities and the candidates themselves must take action in order to address the current shortcomings in the process and to be adequately prepared to address the difficulties anticipated during the election campaign and polling day. Improving the environment and conditions for the holding of free and fair elections is within reach, but more efforts will be required, particularly with regard to the security of voters and staff; and the civic education and public information campaign. The following recommendations have been formulated with these goals in mind.

Recommendations

· In view of the demonstrated vulnerability of individuals and communities to attempts by local rulers to interfere in their choice at the time of polling, it is critical that a massive information campaign should make voters aware of the personal and secret nature of the vote and the voting and counting procedures that guarantee this secrecy. If effective, this campaign alone has the potential to overcome many of the issues that have surfaced during the reporting period.

· In order to strengthen public confidence in the electoral process, the JEMB, the media and the authorities should relay precise and timely information about all aspects of the electoral process. As noted in this and the first report, there are questions within public opinion about the electoral process and the safeguards that it offers with regard to external influence, by the government and other powerholders. Clarity and transparency is key to dispelling such suspicions and allegations.

· In this regard, as noted in the last report, Government instructions to civil servants directing them to protect the political freedoms of individuals are essential. However, most Government officials outside of Kabul remain unaware of the directions and regulations produced by the authorities. The Government- particularly the Ministries of Interior and Defense-is encouraged to use the media to promulgate this information broadly and widely to government officials as well as to the public.

· Another confidence-building tool is the establishment of effective electoral complaint mechanisms that reassure citizens who lodge challenges that their complaints are fairly reviewed. The JEMB should give broad publicity to these mechanisms and ensure that its processes are transparent.

· Because of the pervasive perception that militias will be a factor during the electoral campaign and at the time of polling, disarmament continues to be key to improving conditions for the exercise of political rights. The DDR commitments required from political parties for their registration must be implemented. The targets established in relation to DDR can be achieved by the election date if the government fully commits itself to implementing this initiative.

· Election monitoring is yet another factor that can encourage popular participation in the election and deter the exercise of intimidation and interference. Election observation should therefore be further bolstered and supported, including by the international community.

The provision of adequate security in the lead up to the presidential elections remains essential. International and national security forces must be deployed early enough and in sufficient numbers in order to enable the candidates to campaign safely; to protect election workers as they deploy throughout the country; and to allow voters to cast their votes massively on polling day.

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[1] Review section on the Confiscation, Forced Seizure and Destruction of Voter Registration Cards for further details.

[2] Pursuant to article 62.1 of the Constitution of Afghanistan, presidential and vice-presidential candidates shall be a citizen of Afghanistan, Muslim, born of Afghan parents and shall not be a citizen of another country.

[3] Review section on voter registration for more information.

[4] Of these organizations, the EU and OSCE will deploy assessment missions and ANFREL and FEFA will serve as observers.

[5] Review sections on freedom of movement for further details.