Legal Framework

System of Government and Electoral System

Under the 2004 Constitution, the President of Afghanistan is Head of State and Commander-in-Chief of the Afghan Army. The President heads the executive branch of the central government and is elected by a free and secret ballot for a five-year term, with a two-term maximum. To be elected president, a candidate should receive an absolute majority of votes – over 50%. Failing this, a run-off second round election must be organised between the two candidates who obtain the highest number of votes in the first round. According to the schedule published by the IEC, the results of the 20 August 2009 elections will be certified on 17 September. In the event that there is no clear winner with an absolute majority (over 50%), a second round for the presidential elections will be held on 1 October 2009.

The Legislature is composed of a bi-cameral National Assembly elected directly for the Lower House (Wolesi Jirga) and indirectly for the Upper House (Meshrano Jirga). The last elections for the 249 members of the Wolesi Jirga took place in 2005, under a Single Non-Transferable Vote system. They were elected for a five year term. At least a quarter of seats are reserved for women. The designation of the members of the Upper House is a mixed system – each Provincial Council elects two of its members to make up two thirds of the Upper House. The President appoints the remaining third from among a range of experts and experienced people.

A 2007 Provincial Council Law defines their role which includes participation in the development of the provinces and the improvement of administrative affairs. Provincial Councils members are elected using a first-past-the-post system - the 34 provinces of Afghanistan each represent a single provincial constituency. The Councils have between 9 and 29 members depending on the size of the province’s population. A quota of female candidates was established under the 2005 Electoral Law, requiring a minimum quarter of Provincial Council Seats be reserved for women.

Civil and Political Rights

The Constitution guarantees relevant human rights and fundamental freedoms to all citizens and states that the Universal Declaration of Human Rights shall be respected, as well as all other international treaties to which Afghanistan is a signatory. Afghanistan ratified the International Covenant on Civil and Political Rights (ICCPR) in April 1983, the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) in August 1983 and the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) in March 2003.

The Constitution guarantees freedom of association and assembly. Organisers and participants to gatherings and demonstrations have to inform the local authorities by written notice 24 hours before the event.

Legal Instruments

The Constitution of Afghanistan of 2004 is the basis for the 2009 elections. A series of laws including the Electoral Law (2005), Political Parties Law (2005), Presidential decrees and ad hoc regulations issued by the Independent Electoral Commission, provide a framework for the 2009 Presidential and Provincial Council elections. The legal and regulatory framework for these elections have been further developed in May 2009, with the adoption of a Presidential decree on non-interference in Electoral Affairs of Elections (1388) and the Publication of the Rules and Regulations by the Electoral Complaints Commission.

The main relevant texts are:

Laws:

• Law on Political Parties
• Electoral Law
• Mass Media Law of Afghanistan
• Law of Citizenship in Afghanistan
• Presidential Decree on the formation of an Independent Electoral Commission
• Decree of the President of the Islamic of Afghanistan On Non-interference in the Electoral Affairs of Elections 1388
• Decree of the President of the Transitional Islamic State of Afghanistan on the Adoption of the Law on Assemblies, Strikes, and Demonstrations
• Police Law

Regulations texts:

• Election Campaign Regulation
• Regulation on Political campaign finance disclosure
• Electoral Challenges and Complaints Regulation
• Regulation on Approval of Election Results
• Regulation on Information Technology (IT)
• Regulation on Temporary Election Staff
• Regulation relevant to special guests' attendance at voter registration, voting and vote counting centre
• Regulation on polling
• Media Commission Establishment and Mass Media Activity Regulation
• Regulation on counting
• Candidates' registration regulation
• Archiving and destruction of sensitive electoral materials regulation
• Electoral Campaign regulation
• IEC Regulation on increase of Voter Registration Centers
• Regulation on Voter Registration
• Regulation on Accreditation of observers, reporters, and agents of political parties and independent candidates
• Rules of Procedure of the Electoral Complaints Commission

Other complementary texts:

• Code of Conduct for Political Parties and Candidates
• Code of Conduct for Observers
• Code of Conduct for the Media
  

Electoral Complaints Commission (ECC)

The Electoral Complaints Commission (ECC) was formally established on 26 April 2009 in compliance with Article 52 of the Electoral Law to consider and adjudicate:

• Complaints relating to electoral offences, including violations of the law in the conduct of the electoral process, provided that the complaint has been received prior to the certification of the results of the elections; and
• Challenges to the list of candidates or to the eligibility or qualifications of a candidate raised during the electoral process.

The ECC is composed of five commissioners: Mr. Grant Kippen, chairman, Mr. Maulavi Mustafa Barakzai, Mr. Fahim Hakim, Mr. Maarten Halff and Mr. Scott Worden. In addition to its headquarters in Kabul, the ECC has offices in each province of Afghanistan. Any person or organisation that has a valid interest in the electoral process including voters or observers can file complaints related to electoral offenses, listed in Article 53 of the Electoral Law. These include impeding accredited observers and agents from participating in the electoral process, threatening, intimidating or attacking the dignity of a voter, candidate or journalist covering the election, committing fraud during voting, counting or tabulation of results, providing false information to the IEC or ECC, stealing or changing electoral material and committing violations of the Code of Conduct for Political Parties, Candidates and their Agents. After investigating the complaints received, the ECC is entitled to impose sanctions on offenders, including removing a candidate from the candidates list, invalidating ballot papers and/or imposing fines.