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Elections and Registration in Afghanistan (ERA) Project


Political Party Development in Afghanistan
ERA Topical Report #4


Carolyn McCool
March 31, 2003

Executive Summary

Afghanistan is in a pre-rule-of-law stage of development, approaching democratic norms and an election in 2004 out of one of the darkest histories in the world. Political parties are particularly fragile, having operated in a chilling environment of illegality and violence for decades. Obstacles to political party development are the very real risk of intimidation; harassment and violent reprisal for activism; the fear of such consequences whether they occur or not; and the need to develop, within government and within political formations, both an understanding and an operational capacity with respect to the role, formation, functioning, rights and responsibilities of political parties. The further risk is that all of these obstacles will be exacerbated in the run-up to the 2004 election and in the post-election period. The election cannot succeed, however, with any degree of integrity or credibility, without the participation of political entities operating at reasonably functional levels.

Political entities are at a very formative stage of development in Afghanistan, although some have existed, in one form or another, for many years. There may be in excess of 100 political formations currently identifiable, many in a very fluid state of growth, transition and/or coalescence with others. Significant differences appear to exist over such major fault lines as the role of religion in relation to the state, the relationship of regional and provincial power bases to the central government, and the place of women in society, although these have not yet been exposed and tested in the competitive environment of an election. Further, the parties are facing what is potentially a draconian registration law that would place the central government in a very powerful and intrusive position vis-à-vis party program, policies, leaders and members.

So far as is known, none of the political formations currently operating in Afghanistan has a structure with a revealed internal decision-making procedure, a known membership and elected leaders, or a program generated and endorsed by the membership. These are rather pre-party formations, which have coalesced around individuals with established power bases, or around ethnic or religious identity, or around singular idealistic goals such as "democracy." In order for these formations to advance, both structurally and ideologically, considerable assistance will have to be provided. Spontaneous and unaided transformation and self-organization will not occur.

The need to support political party development, therefore, is both large and critical. The greatest need, however, is the need to collaborate and coordinate with those who are already working in this area. Two agencies are already significantly engaged: the (American) National Democratic Institute and the (German) Friedrich Ebert Stiftung. Both are highly reputable organizations providing a very credible level of service to political entities in Afghanistan. Both have confirmed that there is a need for greater resources in this area and that they would support and welcome the involvement of another actor. The central recommendation of this report is that such a commitment be made at the earliest possible opportunity.

If resources are to be committed to such an involvement, for instance by an Elections Canada/IFES partnership, the design of a capacity-building program should take place in-country, within the context of a Political Party Development Working Group chaired by UNAMA, as the lead agency responsible for the success of the international mission in Afghanistan. Such a program should include elements of political party development, i.e., focusing directly on the political entities, but in addition should include a focus on the development of state and electoral authorities, as well as other professions with clear links to political parties, such as the legal professions, in order to leverage results and maximize the effects of capacity- and institution-building.

Introduction

The Bonn Agreement provides that in Afghanistan "a fully representative government" shall be "elected through free and fair elections to be held no later than two years from the date of the convening of the Emergency Loya Jirga." Clearly the intention and expectation is, as expressed in a series of UN Security Council Resolutions culminating in 2001 with Resolutions 1378 and 1383, that the International Community will support, in concrete and resource-based ways, and in a timely manner, the holding of free and fair elections by the end of June 2004. A number of elements will have to be addressed in an overall architecture of assistance if that support is to be effective. Critical among these is the development of political parties.

1. Background

This report is prepared at the request of Elections Canada and the International Foundation for Election Systems. The purpose is to review the situation of political parties in Afghanistan in the context of the legal framework, including a political party law, and the development of political parties up to and beyond the 2004 election. Approximately four weeks were spent in Afghanistan, primarily in Kabul, with one trip to Kandahar. Approximately 45 consultative meetings were held,1 along with many hours of discussion with the Elections Canada/IFES Team ("the Team"). A variety of documents and reference works were consulted.

No claim to expertise about Afghanistan can be made on the basis of four weeks, most of it spent in the capital city. The situation is extremely complex and weighted with a diverse history of extreme conflict. However, certain types of conditions are common in post-conflict societies experiencing rapid change, and while many things learned in Afghanistan have been new, none of them have been surprising. It has therefore been possible to reach certain conclusions and to make recommendations2 with a high degree of confidence.

2. The Role of Political Parties

The participation of political parties3 is an essential component of any free and fair election. Political party formation and development are critical to (a) citizen participation in public life and governance, (b) the development of a portfolio of policy and structural options to guide the state-building process, (c) the holding of elections which generate a representative form of government, and (d) the transfer of power from the people to the governors.

The engagement of political entities in electoral and parliamentary processes allows all sectors of society to compete for a share of power. It allows groups of people to compete for power, rather than depending on individuals to choose them as a power base. That is, it allows for the collective exercise of power on a national basis. Further, the transition in Afghanistan will be advanced in a more rapid and orderly manner if parliamentarians represent voters through the mechanism of political parties. The public interest is advanced through negotiated policy decisions, which is difficult if not impossible to contemplate if representatives exercise public office on the basis of individual power alone. It is through citizen participation in political parties, and the engagement of those parties in the electoral and the legislative processes, that allows the rule of law to be institutionalized in society. Parties are also the institutions that ensure accountability of the governors to the governed. They ensure, in one direction, the transmission of power to institutions of governance and, in the reverse direction, the process of accountability essential to control power and its exercise.

The stability of Afghanistan and its entry into the community of democratic nations therefore depends upon, among other things, the development of political parties into reasonably mature representative organizations. Failure to support the development of such entities would not only retard the advance of democracy in Afghanistan, but also, more immediately, would legitimize the exercise of power through violence and religious oppression by giving that older system the trappings of the modern electoral process. The consequences, both domestically and internationally, granted the recent history of Afghanistan, would be severe.

The challenge, then, is to devise a program by which the development of a reasonable diversity of political parties may be supported. There are two issues: (a) support for the emergence of a reasonable range of parties with sufficient ideological or political distance between them that the voting public is offered a real choice;4 and (b) support for the development of the capacity or ability of those organizations to engage first in the electoral and then the parliamentary processes.

In order for political parties as they are known in western democratic countries to emerge and to engage in the electoral and parliamentary processes at all, certain conditions must exist.5 Citizens must know and understand that they will, as a matter of individual liberty, have the lawful right to form and join political parties, to support or lead their party's competition with other such entities, and to cast individual and secret ballots for political parties and/or their candidates.6 There must be institutional incentives for exercising those rights, such as the possibility of electing certain people to parliament, of being an elected representative, and the possibility of influencing such things as institutional development, resource allocation, trade relations and foreign policy. Finally, and this is what bears particularly on political party development, there must be sufficient resources for people to exercise their rights to form, to join and to vote for political parties and their candidates.

None of these conditions exist in Afghanistan at the present time in sufficient levels to allow for the unaided development of mature political entities. The knowledge and understanding of the processes being put in place, outside of a very small intellectual elite, is so limited and confused as to be functionally non-existent; for instance, while many people probably know that there will be another Loya Jirga, they do not understand what its purpose will be, nor do people even in senior positions of government know that in June 2004 there will be an election of representatives of the central parliament or assembly.7 The institutional incentives which will lead people to attempt to exploit the electoral process to the full have not yet been created, although they will be established through the adoption of a constitution and the passage of various laws, e.g., with respect to the registration of political parties and the electoral framework, presumably at some point(s) later in 2003. Finally, without significant assistance from foreign sources, there is only a limited capacity to support the development of political parties, with the exception of those individuals with substantial personal sources of funds and advice.

The absence of these conditions should not be taken as a criticism of Afghan society or of the people of Afghanistan. The history of this country for the last several decades has foreclosed any significant development in these areas.

3. The Construction of Political Parties in Afghanistan

There are no political formations in Afghanistan today that can be characterized as political parties in the sense that they are known in mature western democracies. There are however formations with political characteristics and influence that exhibit a diversity of age, organizational development, power, geographic footprint, and ideological bases and beliefs. The fact that they may not look like political parties in the western sense does not mean that they are not, in some cases, extremely powerful, extremely sophisticated, and full of potential.

No accurate catalogue or analysis of parties can be produced on the basis of one month in Afghanistan. It is estimated that such a project would take 2 to 3 months to achieve any degree of reliability and credibility. Such a project would be essential to support the design of any new institution- or capacity-building program.

There is no consensus on how many political entities exist, or on their names or their leaders. One list shows approximately 118 named political entities. Other lists show at least several dozen organizations. There are the older Jihadi parties, some of which are more fundamentalist and extreme, some of which are more moderate. Some of these may be in transition or in a process of coalescence with each other. There are older constitutional parties, some of which have a history going back decades, some of which are royalist, some leftist, and some more conservative. There are Shia parties with ethnic or religious rationales representing different parts of a segment of the Afghan population. There are active remnants of communist formations. There are newer democratic formations whose diverse memberships probably have roots in many of those other traditions. Many of these are suspected to have relationships with foreign capitals.

None of these formations are political parties, as we know them in the West, with broad membership and organized structures. They rest either on traditional regional, tribal, ethnic and/or religious power bases, or they are seeking such power bases, or they are endeavoring to build a newer type of power base under the banner of a democracy whose parameters are still not well understood. What is certain is that all such formations want to pass through the electoral milestone of 2004 and come out in power, as credible institutions, either in relation to power bases within Afghanistan, or in relation to the international community, or both.

Ideological differences or distance between these formations exist to the extent that there are differences of opinion and belief over such things as the role of religion in a sovereign state, whether that role is to be given strict or liberal scope of operation, the relationship of the regions and provinces to the central government, and the place of women in society. Underlying these and other differences in Afghanistan is the tension between those who seek a future based on the rule of law and democratic norms, and those who wish to preserve older and traditional power bases. The election in 2004 will be a milestone testing ground for this struggle.

Political parties have in fact existed for decades in Afghanistan, and the democracy movement is not a new phenomenon, dating back at least to the turn of the 20th century. Various periods of liberalism have seen the emergence of formations that then have managed to survive, in some cases for decades. Examples include the liberal parliamentary period immediately after the Second World War and the constitutional period from the 1960s to 1973. There are parties in Afghanistan today that can trace their histories directly to the 1960s and in some cases even earlier.

The relationship between some of these forces and formations is fluid and liable to shift and change. This includes relations between newer democratic formations and older formations striving to reform. For instance, the National Islamic Front of Afghanistan, led by Pir Gailani, has expressed a desire and willingness to enter into a new political structure with some of the younger democratic forces in order, first, to strengthen the central government and President Karzai, and, second, to promote a presidential candidate in the 2004 election, whether that person be Mr Karzai, the King, -or, presumably, perhaps Pir Gailani himself. At the same time, existing tribal and religious power blocks are expected to remain, and only a presidential party and the anticipation of the exercise of power are likely to substantially affect those blocks.

The creation of new political parties is contemplated in a variety of quarters. For instance, President Karzai is reported to be considering the establishment of a political party. His brother is heading this initiative. The President himself is said to be either unfocused on this project or not entirely convinced of its wisdom. In addition, Peoples' Assemblies of the Hazara people have been created out of the Hezb-i Walahat Party, which may form the basis of a new political party that will claim to be multi-ethnic in nature. It is rumored that a party may be created by those who claim the mantle of the Northern Alliance.

There may be approximately 70 young and new pro-democracy formations. It is likely that many of these are still in very early stages of development and may involve relatively few active individuals. Approximately forty-five such organizations have united in what is now called the National Front for Democracy in Afghanistan. Several groups led the formation of the NFDA, including the National Council of Peace and Democracy and the Council for the Defenders of Peace and Freedom, each of which are also umbrella organizations in their own right. It is interesting to note that, in spite of the lack of a political party law or a constitution, the NFDA announced its formation in a major public event. A party program will be drawn up and candidates will be fielded in the 2004 election. The groups that have joined the NFDA may, however, maintain their own separate identities and also apply to participate independently in the election. It is unlikely that any of these groups would consider an alliance or partnership with any of the older parties, even the more moderate ones such as the Gailani formation, the NIFA. This is undoubtedly because the newer democratic forces wish to distance themselves from any suggestion of warlordism and/or religious fundamentalism, and, also undoubtedly, because they fear marginalization by more politically experienced and in some cases charismatic individuals who already have wide potential constituencies.

Reliable observers predict that we can expect to see at least the following political parties emerge and/or develop with electoral aspirations and some real hope at winning significant votes:

In addition there may of course be a plethora of more marginal entities with little hope of significant support but nonetheless draining votes away from the others.

No political formation in Afghanistan today, so far as can be determined, demonstrates a probable capacity to function at reasonable levels in a transparent and efficient manner, in accord with the rule of law, in an election or in a legislative forum – nor will such a capacity emerge or arise spontaneously. In order to assist the parties in developing that capacity, and to contribute to the integrity of the 2004 election, significant resources need to be deployed, in addition to those already in place, on a very rapid timeline.

Perhaps the hardest lesson for politicians to learn, not just with respect to Afghanistan, and certainly the lesson most critical to the success of the electoral process, is how to lose. The possibility is very real that those who do not rise to a position of dominance, or at least a very strong plurality, will resort to violence to achieve such a position. This could mean an early end to the democracy experiment in Afghanistan. This problem needs to be addressed in a number of different ways, not the least of which is an effective DDR program, but an effective political party development program with a constant focus on the rule of law is also critical to ensuring acceptance of the results of the election.

Legal Framework

Political parties do not of their nature require legislative or other forms of government permission to exist in a democratic society—indeed, such a requirement would or could lead to a subversion of constitutional rights to freedoms of association, assembly and expression. A law outside of the electoral framework that is designed to regulate the existence of political parties should only be considered in the presence of a clear public policy rationale, and should in any event be blind to the politics and activities of those parties save when they stray into such areas as incitement to violence, expressions of hatred, or obscenity.

There is universal agreement in Afghanistan today that political parties may not operate lawfully without specific authorization obtained from the government. The danger, of course, is that such a law may be repealed or undermined by amendments through the legislative forum with relative ease, with the subsequent risk of undermining rights rather than regulating their exercise. It is therefore essential that clear constitutional protection be assured. In addition, with a proliferation of instruments (constitutional, electoral, regulatory), all targeting or relating to political parties, there must be exquisite harmonization, so that all provisions, requirements, rights and responsibilities relate to each other in a manner that is seamless.

The needs are clear, compelling and, due to the shortness of time, urgent. A constitution must be adopted, a legislative agenda for the Transitional Authority must be set, including one or more election laws which would provide for, among other things, an Election Commission. That Commission must be established and begin to implement the action plan that will carry Afghanistan to and through an election. That would be the preferred order of events. However, as the constitution is not expected to be adopted until October of this year at the earliest, a reverse order appears necessary. The Bonn Agreement mandates a national election by the end of June 2004. At that point the agenda of the Agreement will be closed, and any leverage flowing from it will be lost. Preparations for an election in June 2004 must begin now. Therefore the intention is to press ahead with legislation establishing an Election Commission, and the regulation of political parties, in advance of the constitution. While this is not the most orderly way to proceed from a legal point of view, and may result in unevenness in development overall due to post-constitution needs to amend legislation, there is no practical alternative if the timeline of the Bonn Agreement is to be honored.

1.  The Constitution

The 1964 Constitution provided in Article 32, among other things, that "Afghan citizens have the right to form political parties, in accordance with the law, ..." This clearly contemplates that legal requirements will be set out. The King, however, declined to sign the Political Parties Law. This omission was taken to have effectively eliminated a right that on its face was constitutionally guaranteed. The binding of a constitution to legislative enactment is not a recommended approach to constitutional drafting, since it can be taken as permission to restrict, constrain or undermine core rights and liberties.

It is recommended that the constitution guarantee the right to form political parties, but that this is not constrained by any language such as "in accordance with the law."

A Constitutional Commission is seized of the drafting. Once it has produced a preliminary draft, that document will be presented to an expanded Commission that will seek consensus on it and any proposed changes. Their views will then be presented to the public in a far-ranging process of consultation. It appears that the Commission is keenly aware of the need for a process of public consultation and has prepared a detailed proposal in this regard. This will be a large and complex project, leading to a Constitutional Loya Jirga in October 2003.

With respect to the electoral system, the constitution is expected to provide for the right to vote and may include provision for the system of representation, as well as other core electoral matters, such as the establishment of an independent Election Commission.

It is reported that there may be agreement within the Commission that a unitary model of government should be adopted, with all provincial officials reporting to the center. Various other questions will be addressed in the constitution, such as the role of the king, if any, and whether parliament will be unicameral or bicameral. All of these matters will have an impact on political parties as they vie for power, and will result in very different dynamics both in the electoral process and in the subsequent legislative forum.

2.  The Election Law(s)

Political parties, from both a legal and a developmental perspective, cannot be analyzed in isolation but rather in the context or environment in which they will function. The chief contextual factor, at least until the election is held, will be the electoral process. The interface between political entities and electoral and other state authorities is critical to political party development.

There is as yet no draft election law. This could emerge as a single omnibus enactment or as a series of laws dealing with different aspects of the electoral system and the election itself. The pressure of time may argue for the latter approach.

The Election Commission
In Afghanistan today, where history is marked by extreme violence and severe political and religious oppression, the electoral process will raise many sensitive and controversial questions. Experience in other jurisdictions has shown that election commissions are tempted to enter the political fray by making decisions that restrict party competition to those entities and candidates perceived to be more acceptable to the Commissioners. Efforts should be made counter this tendency and to develop the capacity of the Commission to act in an independent and politically unbiased manner. The voters should determine the politics of Afghanistan, not the Commissioners, whose only role is to mount an efficient, free and fair election.

The structure and competences of the Election Commission will be set out by the Transitional Authority. The overarching principles are that the Commission must be independent of government and of political control and must be bound by law to clearly delineated jurisdictions or competences.

No Electoral Working Group has yet been established, nor are any proposed timelines known. It is also unknown whether or not a Working Group will be set up at all, or whether the Commission will simply be established without going through a working group process. Whatever the process, a process of public consultation is desirable. This is particularly critical in the absence of a legislative forum that would allow for debate of proposed government action.

It is recommended that draft legislation establishing an Election Commission be promulgated for public consideration.

The Working Group and/or the Commission will either recommend or decide all questions relating to the electoral system and the election, save to the extent that those are determined by the constitution. It is reported that it will also consider the draft Political Parties Law. It is also reported that the name of the Chair of the Commission may be known in the very near future.

It is critical that the Electoral Working Group and/or the Election Commission be composed of qualified individuals who are as far removed as possible from existing or emerging political parties, as well as tribal, ethnic and religious movements, in order to assure the highest degree of integrity for the electoral process and the credibility of the Commission both in and out of Afghanistan. An independent and competent Commission would be in a strong position to advise the Transitional Authority on the necessity for a balanced and neutral approach to all matters requiring legislative enactment, including the registration of political parties.

In order to support the reality and appearance of an independent Commission, it is recommended that an open, transparent and merit-based process of appointment of Commissioners be established.

It is further recommended that a capacity-building program be designed immediately for implementation once the Commissioners are appointed. This should include an in-country series of orientation, briefing and educational seminars, with an out-of-country component including study tours and visiting delegations. This program should be coordinated closely with UNAMA and with the Transitional Authority.

Electoral Issues Affecting Political Parties
Fault lines of controversy between political entities and state, including electoral authorities, are likely to include disclosure of party structure, program and finances and review of party programs and proposed candidates. There will undoubtedly be other issues that arise; these are presented for the purpose of illustrating a type of approach which is inclusive and politically neutral, while placing a burden of responsibility on all parties and authorities for transparency and adherence to the rule of law.

Disclosure of Party Structure, Program and Finances
Political entities wishing to compete for power in an election seek to hold the public trust and for that reason should be required to demonstrate at least certain levels of internal democracy, transparency of decision-making, and accountability. It is quite likely that parties will be required to register with the state in a process external to the electoral process and that this will include filing a copy of a constitution (see below). Whether disclosure is to a ministry of the state or to an election commission, it is prudent to require political parties to have and to promulgate their statute, which should detail internal party procedures and decision-making processes that are reasonably democratic. This is, of course, from a legal point of view, a very rough-and-ready approach, but particularly in an early post-conflict society in a state of heavy and rapid transition, it provides a bottom line against which parties may be tested, and puts them on notice that certain expectations will have to be met. At the same time, a fair degree of flexibility should be brought to bear on the interpretation of such a requirement.

Similarly, political parties wishing to participate in the election should be required to submit a copy of their party program or at least a concise summary. Barring certain limits which are discussed above, the content of such programs is irrelevant—they can be special interest, deliberately nonsensical, communist or mainstream. What is important is that parties must state publicly what they stand for. This allows election officials to ensure that certain minimal standards are met and enhances transparency in the electoral process.

Finally, party and candidate finances must be subjected to a system of accounting and scrutiny. This is likely to be offensive to at least some of those wishing to compete in the election but is an essential safeguard not only of transparency but also of the integrity of the election itself. The use of black, gray or extralegal funds will taint the process. Similarly, the use foreign funding, even from friendly sources, will degrade the electoral process and possibly alter the outcome of the election and should be avoided at all costs.

It is recommended that political entities seeking certification to participate in the election be required to disclose and submit to the appropriate authorities their constitutions, (which should demonstrate some reasonable adherence to democratic norms and the rule of law), their programs and financial statements.

It is recommended that no cash funding from any foreign source be allowed for any political entity seeking registration and/or certification to participate in the election.

Review of Political Party Programs
Parties seeking to participate in the election are routinely required to submit their programs or at least a program summary with their applications for certification. This is the first point at which the Election Commission will have an opportunity to accept or reject political entities and may be tempted to do so based on political, tribal, regional, ethnic, religious and/or other irrelevant considerations. The politics of a party program is not a question for the consideration of the Election Commission, unless it exceeds the bounds of acceptability in a rule-of-law society, for instance by advocating violence or hatred or the use of obscenities. Further, the fact that members or leaders of a party, either individually or collectively, are known or believed to have committed criminal acts should not be taken as grounds to prevent the organization from participating in the election.

It is recommended that neither the content of the program of a political entity seeking certification, (unless it relies on violence, hatred or obscenities), nor the general character of its members and leaders, either individually or collectively, be grounds for refusal to register or certify the entity.

Approval or Rejection of Candidates
The review of candidate applications is another point at which an Election Commission might act on the basis of their own personal political beliefs. It may be argued that candidates should be rejected who are known or believed to have a history of violent or other severe forms of intimidation, oppression and control. Such criteria are notoriously difficult to articulate and apply and generally raise questions about the rule of law, since such histories may not be demonstrable in any probative sense, but may rely entirely on widely or narrowly held beliefs. In addition, intelligence sources that might have clear evidence are typically unwilling to share it, and the Commission that would have to adjudicate such claims may not have the skills or background to do so in an effective and credible manner.

It is always open to require that candidates be rejected if they have been convicted of certain offences or types of offence, or if they have been charged with war crimes or crimes against humanity. This should however be specified in an enactment or regulation.

It is recommended that candidate acceptance or rejection should not proceed on the basis of known or believed criminal behavior, unless a conviction has been obtained from a court of competent jurisdiction and such a prohibition is specified in an appropriate enactment.

In both of these cases, party and candidate acceptability, the risk is always present that foreign interests will attempt to intervene and exert control. As difficult as this may be, particularly if those nations are considered to be friendly by the authorities, a strict rejection of such attempts must be advanced and maintained.

This very liberal approach to inclusion in the electoral process, which is in fact a very conservative approach to the rule of law, represents an ideal. There will undoubtedly be resistance, operational rejection or at least erosion of some or all of these principles. The result will not necessarily mean that the Commission does not operate at reasonably acceptable levels. It is important, however, that the principles be articulated and advanced in a persuasive manner. This is not only to encourage adherence to such principles, but also to ensure that the Commission is familiar with international standards and expectations, at least in certain quarters. If good faith efforts are made to reach these goals at least at some level, that may be sufficient to ensure the integrity of the electoral process and its outcome.

3.  The Political Parties Law

The draft Political Parties Law raises a number of serious concerns. The issues fall into two principal categories: (a) the role of the state in party affairs, which as set out would be extremely heavy-handed; and (b) the apparent intention to allow registration of only those entities which by declaration and demonstrated action are or seek to be multi-ethnic in nature. The conclusion is that the draft law is anti-democratic in nature and accordingly in need of careful attention.

There is an ad hoc commission dealing with this law at the request of President Karzai. It does not appear that any process of public consultation is planned at this time. This is neither prudent nor wise. At a stage when the need for transparency labors under a very limited form of administration, and particularly in the absence of any legislative forum in which government action may be challenged, it is imperative that proposed laws as sensitive as this be exposed to the public and the community of political party leaders and activists.

It is recommended that a draft of the Political Parties Law should be released as soon as possible for the purposes of public consultation.

Concerns Arising from the Draft Political Parties Law
The core of the decision-making authority with respect to the registration of a political party lies in Article 14 of the draft law. Requests for registration are to be submitted to the Ministry of Justice. A department within that Ministry that *is responsible for registering parties and social organizations will assess the request "along with the constitution and mandate" of the proposed political party. The department will have one month in which to approve or disapprove the request and "shall disapprove" it if it is "deemed" inconsistent with provisions in the Political Parties Law. At least the following questions arise from these provisions.

(a) The word "mandate" is not defined, nor is its meaning specified or clarified in any other way. It is however used as well in Article 8(1), which prohibits basing a party on prejudice, ethnic, tribal and regional "tendencies" (again, a word which is unclear and un-defined), and Article 10, which requires that a party's "mandate and constitution" be positively in accord with certain principles such as sovereignty and territorial integrity, avoiding armed struggle, contributing to national unity and peace and against terrorism, and observance of the Universal Declaration of Human Rights. Words such as "mandate" and "tendency" should be clarified and ideally would be defined at the outset of the statute, in order to avoid being cloaks for disapprovals based on irrelevant and inappropriate considerations.

(b) The explicit provision in Article 14 is for disapproval rather than approval of requests. Particularly at a stage of transition into a democratic society, legislative drafters should adopt inclusive rather than exclusive language, with a positive obligation to accept or approve applications unless there is a clear failure to comply with rules and regulations. The use of negative and exclusionary language, as opposed to positive and inclusive language, will perpetuate a chilling environment for the activities of political parties.

(c) The criteria and the process by which deemed inconsistencies will be found, and disapproval or rejection of requests issued, is not set out. There is no transparency with respect to the procedures by which the exercise of power will be carried out, nor is there any provision for appeals.

These deficiencies in the decision-making procedure as set out in Article 14 lead to the conclusion that the draft statute does not comply with the rule of law. It is not considered that this is the intention of the drafters; on the contrary, we believe that the utmost good faith prevails. The opportunity is clear, however, for serious and candid advice, offered in a spirit of collegial professionalism.

(d) In addition, concerns are raised by other substantive requirements and statements, many of which will have an impact on the ability of political parties to register, as follows:

Article 2: The statement that "The political system of Afghan government is based on the number of political parties" should be clarified. If this is intended to be approval of a diversity or plurality of parties, it is welcome language, but perhaps should be considered for the constitution rather than for an enactment regulating the registration of parties.

Article 3: The requirement of conformity with the "national interests of the country" is sufficiently vague as to be open to abuse and the arbitrary exercise of government authority. The process by which the national interests of the country will be determined, and by whom, is not specified. In addition, this is a violation of the freedom of expression that will presumably be constitutionally guaranteed, since it should be open to every citizen to object to the state's articulation of "national interests." Finally, the requirement that a party's "function" be in conformity with "national interests" is unclear since it is not set out what "function" is contemplated.

Article 4: The requirement that "the political party shall voluntarily recruit eligible individuals among society..." regardless of certain personal attributes is on its face troubling. In the first place, mandating voluntary conduct is a contradiction in terms and is an inappropriate exercise of government intrusion into internal party matters. In the second place, a positive obligation to recruit from all of these sectors of society would be an impossible burden on almost any political organization. The more appropriate language here would be to require that party membership is open to all eligible individuals regardless of certain personal characteristics.

Article 5: Rather than placing an age requirement on membership in a political party, the law should at the most simply require that members be eligible voters. It is an unreasonable restriction on individual freedom of association that judges, prosecutors and military officers may not be members of a political party. It is also unreasonable to prohibit multi-party memberships on the part of any one person.

Article 6: The presumption that leaders of parties must be men, as expressed by the use of the word "he" is a violation of international human rights standards. The requirement for leaders to have been born of Afghan parents is unreasonable, particularly when the ability to prove the citizenship of one's parents may be difficult. The reference to the spouse of a leader is an extraneous consideration which ought not to have any bearing on the registration of a political party. The requirement that a leader be at least 25 years old is an inappropriate intrusion into internal party affairs, since it should be the party membership which determines leadership, so long as that person is an eligible voter. The prohibition against dual nationality will eliminate many qualified Afghans who may wish to return home from the diaspora. The requirement that leaders not have "committed" any criminal act (as opposed to having been convicted) is sufficiently vague as to be open to abuse. Consideration should be given as to whether the prohibition should refer to "any" criminal act, or only more serious criminal acts. The requirement of leaders that they "have good reputation and not be guilty of any corruption" is sufficiently vague as to be open to abuse.

Article 7: The statement that "political parties shall bear equal rights and responsibilities against the law" is vague and unclear.

Article 8: This article effectively strips any right from a party to have an ethnic, tribal or regional identity and is for that reason antithetical to the notion of collective minority rights. The conclusion must be that the only parties that will be approved for registration are those sufficiently large and wealthy enough to have a presence and identity across at least more than one ethnic group, tribe or region.

Article 9: The requirement that a political party "shall have to observe and respect Islamic law" is extraneous and irrelevant to the registration of political parties and a violation of the right to freedom of religion. Further, it raises questions as to Sharia Law as opposed to civil law. The most that should be required in this type of legislative enactment is that political parties are required to abide by the constitution and the laws of Afghanistan (something which is unnecessary to state in any event). Any requirement to observe and respect Islamic law would be a matter for the constitution rather than for a law. The requirement that political parties have to observe and respect "national and historical traditions of the country" is sufficiently vague as to be open to abuse: what are those traditions, who will determine them, how will this be enforced and by whom, what appeal may the disentitled party bring?

Article 11: There is no reason to require that the headquarters of a political party be in Kabul, unless it is to allow easier implementation of the central government presence at such offices for the purpose of protection, as appears to be required by this section. Since citizens, organizations, associations and businesses are presumably already entitled to the protection of the police, this would appear to be a thinly veiled attempt to provide for central government monitoring and control of political party activities.

Article 13: The requirement that a party have, in order to be registered, at least 30 founders and 700 members does not appear to have any purpose, and is once again an unreasonable intrusion of government authority into internal party affairs. In an environment in which political parties are still regarded with distrust, and fear of government retribution for engaging in political activities still exists, consideration should be given to dropping the numbers to 5 founders and 250 members.

Article 14: See above.

Article 15: It would be preferable that parties submit their constitutions with the application for registration, rather than after registration, in order that they may be determined to conform to reasonable levels of internal democracy (see below).

Articles 16 & 18: The effective prohibition against party activity until it is registered is an unreasonable restriction on what will presumably be guaranteed in the constitution as freedoms of assembly, association and expression. This is made more apparent by the description of the activities which can only be commenced after registration, which includes "commenting freely ... on ... issues", or "... utilizing country's press ...". One consequence would be that the party could not announce its formation or application for registration or indicate what its program and activities will be if registered.

Article 19: The requirement "to avoid insult, threat or committing actions beyond public ethic against other political parties and their members" is sufficiently vague as to be open to abuse, particularly in the assertive and competitive environment of an election campaign. This type of restriction should be limited to matters such as hate speech and incitement to violence, and will presumably be covered in one or more campaign codes of ethics binding on political entities and candidates.

Article 20: The requirement that a political party may not dissolve itself without an order of the court is without justification and an unreasonable and unnecessary intrusion of government authority into internal party affairs. A refusal to allow dissolution would, among other things, allow continued government surveillance at the office headquarters which is required to be in Kabul (see above).

Article 22: The provision that founders and leaders have the right to attend and give reasons at any hearing into an application for dissolution is unnecessary since such a right would be guaranteed in any event in a rule-of-law state. This provision suggests that the right to attend legal proceedings has to be guaranteed by specific legal enactment, rather than by constitutional right.

These provisions mandate a government role which overall is unnecessary and offensive to the rule of law. Clearly the Political Parties Law has been drafted in the context of an older culture of government control, intrusion, monitoring and regulation which is counter to all of the democratic traditions that Afghanistan is striving to embrace.

Government Interpretation of the Draft Law
This anti-democratic stance has been underscored by comments made in certain meetings, which have made it clear that serious consideration is being given to refusing registration to any party that does not demonstrate through declaration and action that it is actively multi-ethnic in character. That is, a very aggressive interpretation of Articles 4 and 8 would be enforced. It has also been suggested that any party suspected of attempting to camouflage its noncompliance with those sections, as strictly applied, would be referred to the Attorney General for investigation.

Clearly this arises from a desire to strengthen the central government in relation to traditionally strong regional power bases. There is no doubt but that the central government in Afghanistan needs to be strengthened. If this is to be done at the expense of regional, ethnic, tribal and religious differences, however, the result will only be that Kabul becomes the most powerful region, rather than the seat of a unified and diverse nation.

In addition, the approach suggested by the government is arguably a violation of international human rights standards. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities8 provides, among other things, that:

"Article 1
1. States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.
2. States shall adopt appropriate legislative and other measures to achieve those ends";
and
"Article 4
4. Persons belonging to minorities have the right to establish and maintain their own associations."

Afghanistan would be wise to follow the guidance of the United Nations in this matter as it strives to enter the community of democratic nations. Any attempt by the central government to manage the politics of political parties and the electoral process is unreasonably intrusive and fundamentally anti-democratic, with a high degree of risk of non-acceptance by the population and its consequences for the development of a stable political environment.

It is recommended that immediate efforts be made to bring all of these matters to the attention of the appropriate persons.

4.  An Alternative View of Political Party Registration

There is no question but that political parties that wish to participate in an election must present themselves to the appropriate authorities and make certain disclosure of their affairs. The preferred method would be to require registration with the electoral authorities. This would make it clear that government intrusion into party functioning is for the purpose of ensuring the integrity of the public electoral process, rather than for the purpose of monitoring and controlling what political party members think, believe and do outside of that process—matters that are subject to constitutional guarantees of such freedoms as assembly, association, expression and religion. At this point it appears inevitable that registration with the state (as opposed to the electoral authorities) is inevitable in Afghanistan, but this could be changed after the 2004 election.

It is recommended that in future consideration be given to folding political party registration into the election administration system, and removing it from the Ministry of Justice.

Whether registration is with the state directly or with the electoral authorities, a different approach to such a law is available, one which is both minimalist and politically neutral.9 No control over party program or activities is sought or required. Following such a model, the kind of information which would be required for a party to register would be the following:

Upon receiving an application with information of this type, on any form required, the appropriate authority would then register the party. A decision to refuse registration would have to be stated with reasons, and the party would be entitled to appeal to an appropriate authority. The registering authority would also be required to cancel registration upon request by an official authorized to submit such a request for cancellation, but would also have the power to initiate a cancellation should it be determined that registration had been obtained through fraud or misrepresentation, a matter which could, again, be appealed by the party to an appropriate authority. The law could further require that a party renew its registration on an annual basis.

In the context of an election there will be additional requirements placed upon political entities, but with respect to political party registration itself, outside of the confines of the electoral system, this type of information is all that a state requires in order to ensure the orderly and transparent functioning of a political party. To go beyond this is to maintain an older culture of government monitoring, intrusion and control, in violation of individual rights and liberties, and will inevitably perpetuate the chilling environment that has surrounded political parties in Afghanistan for decades.

It is recommended that efforts be made to encourage consideration of a minimalist and politically neutral model of political party registration.

The standards suggested here are very high. It is not expected that they will be adopted as presented. While stressing the need for a system of political party registration in Afghanistan, highly credible and progressive sources have indicated a preference for a minimalist and regulatory law, as opposed to one that mandates political content. For this reason there is some expectation that legislative drafters and decision-makers would be sympathetic to such an approach. So long as reasonable and good faith efforts are made to reach some level of freedom from political control by the government, independence in the Election Commission, and transparency of decision-making in accord with the rule of law, the integrity of the electoral process in 2003 may be assured.

Institution- And Capacity-Building Programme

The issues then are how to encourage the growth of a reasonably diverse community of parties and how to promote and support the formation and development of individual political entities, within the framework of appropriate constitutional and legal rights and responsibilities. This requires the development of a capacity-building program with an integrated portfolio of training and support elements that will demonstrate both the various options for the creation, growth and management of a number of different political parties and the means of implementing those various options.

The need is very great to see meaningful development, but the time is very short. If the 2004 election does not include the participation of political parties operating at reasonable levels of responsibility, both during the campaign and subsequently in the legislative forum, the consequences for Afghanistan, both internally and externally, could be severe. The government of Afghanistan must demonstrate at least a minimal level of functionality in the immediate post-election period. A failure of governance at that moment could have severe repercussions for the political situation both internally and externally, and could jeopardize donor interest in the longer term. The time is now to front-end load a concerted institution-building effort. This is the challenge to the International Community, whose interests compel the conclusion that significant efforts must be made to support political party development in Afghanistan in the pre- and post-election periods.

It is recommended that Elections Canada and IFES commit at the earliest possible moment to an institution- and capacity-building program aimed at political party development in line with the principles, guidelines and suggestions that follow. That program should be operational prior to the constitutional Loya Jirga which is planned for the fall of 2003.

1.  Underlying Principles

Certain principles must guide the development and implementation of an institution- and capacity-building program in an early post-conflict environment. These include local or national ownership, sustainability and collaboration.

Local ownership has become a buzzword in international democratization programs. Lying behind it is the idea that foreigners cannot by themselves develop the citizens and the institutions of other countries. Development must come from within a country if it is to succeed. This is not just a question of fine-tuning teaching methodologies. It is a question of learning, respecting and building upon local knowledge, expertise, traditions and laws, to the extent that those are not inconsistent with the values and standards being promoted. It is also a question of allocating responsibility, at every step, to the citizens of the host country.

This does not mean rejecting or ignoring the resources, knowledge, expertise and values that the International Community brings to Afghanistan, nor does it mean abandoning certain core requirements for those receiving assistance, such as good faith efforts to adhere to the rule of law. These are the very things that Afghanistan wants from us. In order for them to be able to learn from our experiences, however, and to integrate those in appropriate ways into their own country, our offering must be made in ways that are profoundly respectful, and clearly intended to support and suggest rather than to impose or colonize.

Local ownership can be institutionalized through the adoption of a hand-over strategy.10 This requires strategic planning, with articulated goals for those milestone events that can be predicted (e.g., by the opening of the election campaign, by the first meeting of the new parliament), and in any event on a periodic basis (e.g., one-, three- and five-year plans). One of the key elements of any such strategic plan should be the development of local or national capacity to take over increasing components and levels of democratization and institution-building programs. This can be done by increasing reliance on local staff, by identifying local agencies that can act as partners, or supporting the development of such organizations if none exist, and through the inclusion of training-of-trainer (ToT) programs in every significant medium- and long-term project.

Sustainability is another pillar of democratization. Development does not occur unless it is sustainable. Local ownership is key in this regard, but sustainability rests on other concerns as well. The cost of development must in the end be supportable by local or national budgets. The pace and timing of training and capacity-building must be appropriate to the target populations. The curricula must be designed with regard to educational and literacy levels, as well as prior professional and work experiences and the cultures in which those existed. A portfolio of teaching methodologies must be developed to suit a range of topics and participants.11 All of these factors must be taken into account, depending on local circumstances, experiences, traditions and cultures.

Collaboration and coordination between and among all actors is essential in order to leverage results, share resources and avoid duplication as well as training fatigue and burn-out on the part of program participants. A multi-agency approach is required to implement this, with a mechanism, the centerpiece of which must be regular meetings, for coordinating activities. It is critical that a common vision be developed by all actors. This can be something as simple as the development of a reasonable diversity of ideologically distinct political parties reflecting the core values of significant portions of the citizens of Afghanistan, able to compete effectively for those votes in an election, and to represent those voters capably in the legislative process afterwards. In line with the principles set out above, it is essential that collaboration and coordination be with local individuals, agencies and organizations to the extent possible, and while pursuing a capacity-building program to increase their participation steadily over time.

The role of UNAMA is critical. While political party development and activities should be carried out at a distance from all government authority, the United Nations has the lead role for ensuring the success of the international mission in Afghanistan and accordingly should take a guiding and advisory role with respect to political party development.

2.  Elements of a Program

Political Diversity and Coalition-building
If the electorate is not offered a diversity of voting options, the election will not result in a "fully representative government." We may be witnessing the emergence of a number of different types of political parties. The efforts of the International Community must be to support the development of all registered parties equally. There must be no favoritism. It is not for foreigners to indicate, either openly or in more nuanced ways, that the people of Afghanistan should choose one or from within a small range of political entities that wish to compete for power.

At the same time, this is not to say that we should be blind to the existence of non- or anti-democratic forces. The range of programs and projects that will be offered will be in order to support the development of effective democratic formations operating in accord with the rule of law. That is the purpose of the involvement of the International Community in this area. The point is that the programs and projects that are offered must be offered to all who wish to take advantage of them, without favoritism.

In addition, efforts should be made to explore innovative ways in which partnerships of older and new formations may be forged. Afghans are generally extremely innocent with respect to the democratic electoral process and are likely to vote for those they know, or not vote at all. The newer instincts for democracy could be used to reform or transform older formations and thus develop the possibility of a wider partnership between the electorate and the new parliamentarians. Resistance to this among the new groupings, however, will be considerable, and whether this possibility contains any seeds of reality is not yet known. It would be useful, however, if this were to become an active and assertive area of exploration on the part of the International Community. A highly innovative and creative approach would be required in order to identify gaps or deficiencies that could be filled by such partnerships or relations.

An institutional gap or deficiency exists with respect to research and development. There do not appear to be any independent institutes that could form the basis of an indigenous capacity to support party development. At the same time there are moderately progressive Afghans with access to substantial non-government funds who are interested in supporting the development of democracy. If they could be convinced of the wisdom of establishing an Afghan institute for research and development, that facility could be used by fledgling parties for their own development, and by older parties for their transformation into democratic formations. This would provide an Afghan grounding for political party development and a forum in which potential liaisons could be explored.

It must be said that at this point such possibilities would almost inevitably be met with outright dismissal. Those with personal fortunes do not want to spend them on collaborative and innovative political adventures, and those with rigid political beliefs and ambitions do not want to be tainted by exposure to their competitors. Any pursuit of these possibilities would have to be on the basis of individual relationships between foreigners and Afghans at fairly senior political levels, over an open-ended timeline, as well as exposure to post-communist and transitional countries where these types of alliances have succeeded.

The converse of diversity is coalition-building. Neither the electoral process nor the electorate would be served by the entry of 100 entities, or even half that number. As we have seen recently with the formation of the National Front for Democracy in Afghanistan, coalition-building is possible, and must be encouraged at every opportunity.

Party Development
If the candidates who may be elected, and the parties or entities who field them, do not understand their rights and responsibilities and the manner of exercising them, and if the voting public does not understand what they may expect of elected representatives and the parties that generate them, and if the public does not understand its ability, through the ballot box, to influence the subsequent course of government, then the election will be a hollow, if extremely expensive, exercise.

The capacity-building program should focus on, at the very least, the development of:

There is a crisis of representation in Afghanistan today. There is no history of representative government, and people do not feel that their views are represented in existing structures of government. The nexus of representation and accountability is in the vertical relationship between citizen and leader, or would-be constituent and would-be leader. If the potential leaders do not develop a repertoire of leadership and representation skills or understand their rights and responsibilities, and if potential constituents do not develop a repertoire of civic participation skills in relation to political parties and elected representatives, the birth and development of political parties will not occur.

The situation of women in Afghanistan today is particularly acute. The scope of that situation is beyond the confines of this paper, but is well known to all: women suffer the highest illiteracy rates, are subjected in many cases to forced seclusion, have limited or no freedom of movement, and face the risk of prohibition by male family members from participating either in the registration process or the election. These conditions are not universal, and, indeed, there is an active womens' movement and some women even appear in senior positions in government, almost certainly as tokens, but they act as role models and symbols of the hopes and aspirations of many Afghan women.

Different types of support may be provided to political parties. These may be characterized as infrastructure support and direct capacity-building. Both can serve to assist in the development of political parties as institutions of public life and to enhance their capacity to fulfill electoral and legislative responsibilities.

Infrastructure Support
Emerging parties in a post-conflict society typically have few if any resources to support their work and development. This is true of new grassroots democratic movements, but also of parties built upon older forces that are attempting to reform themselves. They will need physical space, communications equipment, including internet access, and basic office supplies. One way to address this need is to establish a network of political party service centers. These should not just be in Kabul but should be located in strategic regional centers throughout Afghanistan. Each center would have a number of meeting rooms, to be determined with reference to the approximate number of registered parties, but without any party or entity having a dedicated office.12 Each center should have a communications center with an appropriate number of internet connections and other basic equipment such as photocopiers, again in a shared space, so that party representatives may communicate with each other and with political parties and organizations outside of Afghanistan. There should be at least one large room in each center that could support seminars and workshops. Overall management should be under a single all-Afghanistan system, under the immediate direction of an implementing partner with a mixed foreign and Afghan staff. The use of meeting and workshop rooms would be through a booking system.

This type of infrastructure support provides several advantages to political party development work: (a) it gives parties a structured environment in which to meet and communicate within their own ranks; (b) it places parties in a common infrastructure that promotes inter-party dialogue and coalition-building; (c) it provides space for development organizations and agencies, both in-country and visiting, to meet with the political parties; (d) it provides space for agencies and organizations to meet with each other, thus supporting a culture of collaboration and coordination; finally, (e) it provides political entities with at least the possibility of access to these types of services without resort to extra-legally generated funds.13 On the other hand, it has been suggested by one person that the level of fear and distrust is still so high that political activists would not use public spaces; therefore this suggestion would have to be canvassed thoroughly within the community in Afghanistan before implementation.

It is recommended that consideration be given to establishing a system of political party service centers in Afghanistan. It is envisioned that such centers would then be available to all agencies and organizations conducting political party development programs

Other types of expense-based support mechanisms are possible, for instance, the payment of the cost of having media spots produced for use during the electoral campaign, or the payment of the cost of campaign posters. One of the difficulties with this is that the donor will be perceived as supporting the content of the media spots and posters, with the subsequent necessity to monitor and in some cases censor. This rapidly becomes very controversial. Any such program would have to be carefully negotiated with the political entities and then managed with extreme care.

It is recommended that no cash contributions to political parties be made or allowed from any foreign source.

Experience in other jurisdictions has shown that such support is impossible to account for or to monitor in any effective manner. It is essentially uncontrollable and can result in very awkward political situations for the International Community.

Capacity-building
A variety of target populations must be identified for different types of direct capacity-building, and an appropriate training curriculum of topics, issues and challenges, based on a diversity of training methodologies, must be designed.

The first question that needs to be addressed is whose capacity needs to be developed. The most urgent need will be the Election Commission, once it is established. There is no doubt but that significantly talented and highly educated individuals are present both in Afghanistan and in the diaspora, which may provide a rich pool of qualified candidates to sit as Commissioners, but no assumptions should be made that persons acting as Election Commissioners do not need training and sensitization to the nature of their responsibilities. This will be the critical body leading the election, in circumstances that will be very difficult. It is essential for the integrity and credibility of the electoral process, including the Commission itself, that they be competent as well as independent.

It is recommended that immediate steps be taken to design and implement a training program for the benefit of the new Election Commissioners. This should include exposure to counterparts in other countries, both in and out of Afghanistan, as well as an in-country series of orientation, briefing and educational seminars.

Another target population should be officials working within government who will be required to deal with political parties, such as those who will receive, consider and determine party registration. Once the registration law is enacted, those persons should receive focused training, including on-the-job mentoring, with regular follow-up as the volume of registration applications increases.

Particular consideration should be given to involving lawyers, law professors and law students in political party work. There is an urgent need now for a critical view to be put forward of the draft Political Parties Law, and once that law is passed then the legal profession could be involved in a capacity-building program with the political party representatives on rights and responsibilities under the law, exercising those in concrete ways, and taking appropriate action in the event of a violation of the law by the authorities.

The largest group will of course be political activists, representatives and officials, who will need a wide range of training over a long period of time.

Topics to be covered would include educational seminars on the constitutional and legal framework, Afghanistan's commitments under certain international instruments such as the Universal Declaration of Human Rights, and technical and professional areas requiring the development of expertise (power structures, bases and patters in Afghanistan, party structure and internal processes and procedures, program and policy development, the registration and election certification process, party accountability and finance, press and media relations, the role of women, candidate training, young leaders, citizen participation, the legislative process and parliamentary committee work, just to name a few.)

Depending on the topics to be covered, and the sensitivity these may raise in different areas, both cross-party and single-party groups would have to be structured. For instance, workshops dealing with general topics such as the constitutional and legal frameworks and the party registration and election certification processes could be held on a multi-party basis, whereas some parties might wish to meet by themselves with international experts on the development of party programs.

Different topics, and different target populations, will require different approaches and methodologies. In-country programs such as those already under active implementation by some agencies in Afghanistan are the primary foundation of any capacity-building program since they allow for the development of long-term relationships between foreigners and nationals; it is often in the context of those relationships that the most difficult of problems are teased out and, if not resolved, at least advanced. It is also possible to make use of the in-country presence of international experts who are working in various agencies throughout Afghanistan. Finally, a program of visits to Afghanistan by delegations of political party representatives and parliamentarians should be designed to occur on a regular basis; exposure to foreign experts is one of the key ways in which to focus on specific challenges and opportunities in the electoral and legislative processes. Consideration should be given to bringing in political party experts from abroad who could provide individual consultations to any registered political party wishing to take advantage of such services. Such a project would have to be designed carefully so as to avoid allegations of favoritism, and should be centered in international offices, with time allocations offered equally to all.

Significant and substantial focus will have to be placed on the role of women in and in relation to political parties. Party development will have to treat of gender awareness, the rights of women, and the need to promote women into positions as party activists, officers and candidates. The woman voter is a subject that should be coordinated with the voter and public education program. All of these efforts will need to be aimed at men as well as women, with particular sensitivity as to how such issues should be canvassed with men.

A post-election program will need to be developed with courses at appropriate levels on a variety of topics for those political party representatives who have been elected to the new parliament.

No capacity-building program should focus on Kabul alone. Mobile teams can play a very useful role, particularly if a system of political party service centers is not adopted. If the regions and the provinces are not included in an all-Afghanistan approach, hostility between them and the center will only deepen and continue to divide the country.

The design of an overall capacity-building program must be carried out from the ground up. Close collaboration and coordination is required in order to identify resources that have already been committed, programs that have already been designed, and areas that still require support and development.

It is recommended that a multi-agency and multi-donor Political Party Development Working Group be established immediately, under the overall guidance of UNAMA, in order to carry out this task.

Political party development has been under active implementation in Afghanistan for more than a year. Agencies with strong track records have been involved here in substantial endeavors. Meetings with them in Kabul in the last month have brought home the strength of the work that is already being done. Any additional resources put into this country to support political party development must be closely coordinated and integrated with the agencies that are already on the ground. There must be no attempt to duplicate their work but rather to identify those areas or fields that still need to be occupied. For instance, it may be that the Working Group would identify a Women and Politics Program as a core project that should be mounted. Similarly, the development of a Parliamentary Support Program might be supported by the Working Group, dedicated to organizing visits from abroad by legislators and political party representatives.14

These are matters for a Political Party Development Working Group to consider, and no decision to mount new programs or bring in additional resources should be made without close consultation with that Group.

The Way Forward

What is to be done is very clear. If a national election is to be held in Afghanistan in 2004, as it must under the terms of the Bonn Agreement, and if the International Community is to maintain any credibility with respect to its commitment to that country, then significant efforts must be made to enhance the ability of the political parties to function in the electoral process and in the parliament to be formed. Very credible efforts are being made by agencies already on the ground, with substantial success already apparent (for instance with the formation of the National Front for Democracy in Afghanistan), but much more is required.

A commitment should be made immediately to establish another office responsible for political party development on the basis of a sound political party analysis and with a cross-professional mandate that would see capacity-building not only for political entities, but also for state and electoral authorities and for the legal professions. It is only by capturing all of these actors that their capacity will contribute in an integrated way to the mounting of a free and fair election, producing a representative form of government for the first time in at least half a century for the peoples of Afghanistan.

Elections Canada and IFES are in a prime position to be able to provide this service. Should they choose to make the required resources available, program design could begin in Afghanistan within the next couple of months, along with a full political party analysis, and a service organization could be operational before the Constitutional Loya Jirga that will be scheduled for the fall of 2003.

It is critical that any such program be launched and implemented under the auspices of UNAMA and in intimate collaboration and coordination with other agencies doing similar work. UNAMA should not do political party development, which needs to take place at arm's length from any source of government authority, but UNAMA should coordinate and provide overall guidance to these efforts.

The stakes are very high, and the consequences of a failure of commitment are potentially severe, both within Afghanistan and internationally. This is the moment to seize the work and follow it through in an orderly and well-resourced way.

APPENDIX I

SUMMARY OF RECOMMENDATIONS

It is strongly recommended that:

1. The constitution should guarantee the right to form political parties, but this should not be constrained by any language such as "in accordance with the law." (page 10.)

2. Draft legislation establishing an Election Commission should be promulgated for public consideration. (page 12.)

3. In order to support the reality and appearance of an independent Commission, it is recommended that an open, transparent and merit-based process of appointment of Commissioners be established. (page 12.)

4. It is further recommended that a capacity-building program be designed immediately, for implementation once the Commissioners are appointed. This should include an in-country series of orientation, briefing and educational seminars, with an out-of-country component including study tours and visiting delegations. This program should be coordinated closely with UNAMA and the Transitional Authority. (pages 12 and 26.)

5. Political entities seeking certification to participate in the election should be required to disclose and submit to the appropriate authorities their constitutions, (which should demonstrate some reasonable adherence to democratic norms and the rule of law), their programs and financial statements. (page 13.)

6. No cash funding from any foreign sources should be allowed for political entities seeking registration or certification to participate in the election. (pages 13 and 26.)

7. Neither the content of the program of a political entity seeking certification, (unless it relies on violence, hatred or obscenities), nor the general character of its members and leaders, either individually or collectively, should be grounds for refusal to register or certify the entity. (page 13.)

8. Candidate acceptance or rejection should not proceed on the basis of known or believed criminal behavior, unless a conviction has been obtained from a court of competent jurisdiction and such a prohibition is specified in an appropriate enactment. (page 14.)

9. A draft of the Political Parties Law should be released as soon as possible for the purposes of public consultation. (page 15.)

10. Immediate efforts should be made to bring concerns regarding the available draft Political Parties Law to the attention of the appropriate persons. (page 18.)

11. In future, consideration should be given to folding the requirement to register political parties into the election administration system and removing it from the Ministry of Justice. (page 19.)

12. Efforts should be made to encourage consideration of a minimalist and politically neutral model of political party registration. (page 20.)

13. Elections Canada and IFES should commit at the earliest possible moment to an institution- and capacity-building program aimed at political party development to be operational before to the Constitutional Loya Jirga, which is planned for the fall of 2003. (page 21.)

14. A system of political party service centers should be considered in Afghanistan, for the use of all agencies and organizations carrying out political party development work. (page 25.)

15. A multi-agency and multi-donor Political Party Development Working Group should be established immediately, under the overall guidance of UNAMA. (page 27.)

APPENDIX II

LIST OF MEETINGS

APPENDIX III

REFERENCE MATERIAL

Documents

1. UN Security Council Resolutions No. 1267 (15 October 1999), No. 1333 (19 December 2000), No. 1363 (30 July 2001), No. 1378 (14 November 2001), and No. 1383, 06 December 2001.

2. Bonn Agreement, 05 December 2001.

3. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the UN General Assembly Resolution 47/135, 18 December 1992.

General Works on Afghanistan

4. The Constitutions of Afghanistan (1923 – 1996), (compilation), un-dated, Shah M Book Co, Kabul, Afghanistan.

5. Adamec, Ludwig W., Historical Dictionary of Afghanistan, 2nd Edition, 1997, Scarecrow Press, Inc.

6. Dupree, Louis, Afghanistan, 1980, Princeton University Press.

7. Elphinstone, Mountstuart, An Account of the Kingdom of Caubal, (1815), 1969,
Akademische Druck-u. Verlagsanstalt Graz - Austria

8. Ewans, Martin, Afghanistan, A Short History of its People and Politics, 2002, HarperCollins.

9. Rubin, Barnett R., The Fragmentation of Afghanistan, 2002, Yale University.

Documents from Afghanistan

10. All-Afghan Women Union, Constitution (1992) and Activity Achievement (un-dated).

11. All-Afghan Women Union, Suraya Parlika's Speech, 08 March 2003.

12. Assembly for Peace and National Unity of Afghanistan (APNUA), Briefing Package (organised by National Islamic Front of Afghanistan).

13. Association of Civic Institutions of Afghanistan, Suggestions to the Constitution Drafting Commission, un-dated.

14. Civil Development Foundation (CDF), Introduction, Objectives, On-going Projects, un-dated.

15. Constitutional Drafting Commission, Secretariat, Public Information on the Constitution-Making Process in Afghanistan, 27 February 2003.

16. Foladi, Dai, Preface to What is Democracy, un-dated, ("printed in Kabul").

17. Friedrich Ebert Stiftung, (Dr Almut Wieland-Karimi), Afghanistan: No Peace without the Majority of the Population, October 2001.

18. Friedrich Ebert Stiftung, (Dr Almut Wieland-Karimi), War in Iraq – Setbacks for the Peace Process in Afghanistan?, un-dated.

19. Marefat Education Centre, Introduction, Objectives, On-going Projects, un-dated.

20. National Front of Democracy of Afghanistan, The Great Assembly for Announcing the Existence of the NFDA, 10 March 2003.

21. Peoples' Independent Assembly, Proposed Work Plan, 20 Sept 03, (conducted by CDF).16

22. Political Parties Law, draft, un-dated.


1See List of Meetings attached as Appendix II.

2See Appendix I, Summary of Recommendations.

3By "political parties" is meant pre-party political formations and movements as well as all of those types of political entities that may be allowed to apply for certification in the electoral process (e.g., parties, coalitions, citizens' initiatives, independent candidates).

4Post-conflict societies often experience an over-proliferation of political entities. Historically, political parties were formed after parliamentary institutions were created. The unwieldy nature of the decision-making process made it impossible for individuals acting singly to effectively decide. One classicresolution of this situation was the development of a two-party system, the first party being the governing party facing an opposition across the aisle. The credibility of the opposition parties depends on its ability to provide an alternative to that in power. The two-party system has evolved to foster both support of executive decision-making and the accountability essential to the proper exercise of power. It will undoubtedly be some time before the political party situation in Afghanistan would resolve into this or some other model of stable legislative power balance.

5No pretence at political anthropology is intended here, but rather to set out basic requirements from an operational perspective.

6Whether the voting will be on the basis of open candidate or closed party lists is one of the questions to be determined by the Election Commission, still to be established.

7The Governor of the Province of Kandahar, and his Spokesperson and the Mayor of the City of Kandahar, all said that they did not know, until we told them in meetings on the 3rd and 4th of March, 2003, that there will be an election in June 2004.

8Adopted by UN General Assembly Resolution 47/135 of 18 December 1992.

9An extensive review has been conducted of legislation dealing with the registration of political parties in countries from Europe, Asia, the Middle East and North America.

10Some refer to this as an "exit strategy", a nomenclature which is not recommended as it tends to suggest that the goal of the International Community is simply to leave.

11For instance, a lecture style of training, if over-used or exclusively used, can prevent assimilation and retention and contribute to training fatigue and burn-out on the part of lecturers and participants alike.

12Dedicated offices raise the potential for preferential treatment, as some parties would get larger or more comfortable rooms, and as the number of parties rises, may become impossible to provide in any event.

13One incentive to de-couple from such sources will be the scrutiny of party and candidate finances throughout the electoral process.

14Study trips abroad by Afghan party representative and candidates should be treated with caution. They are extremely expensive, and while experience has shown that such trips can be very useful once local participants have achieved significant capacity, before that point is reached they may have little political development value. As an example, a study tour abroad for members of the new Election Commission would probably be of significant use, as it is presumed that their qualifications and background would allow them to assimilate foreign experiences with relative ease. This judgment will have to be made in the case of each group of potential participants in such tours.

15Note that while Mr Royesh states that he is not a member of Wahadat, he has a long history of membership and/or association with them and is currently the Head of the Provincial Council of Wahadat for Kabul.

16There is a relationship between all of the organizations listed at #13, 14, 16, 19 and 21, and to the Hazara community and to Hezb-i Wahadat (the Unity Party).