Elections and Registration in Afghanistan (ERA) Project
Political Party Development in Afghanistan
ERA Topical Report #5
April 20, 2003
A further apparent version of the proposed Political Parties Law is now available.1 Without explanatory or background notes, it must be said that, to the Canadian reader, this version exhibits some if not all of the characteristics described in the earlier report, and perhaps new ones as well. This is not to suggest, however, that some version of this would not be appropriate for Afghanistan today—that is for the proper persons in Afghanistan to decide, after consultation with all those who have an interest in such a law.
It is clear, as was argued earlier in Topical Report #4, that Afghanistan is, in a sense, in a pre-rule-of-law and a pre-party stage of development. The conditions are only now being created for such parties to emerge and form. The legal environment, the rule of law itself with respect to political parties, is in the process of formation. For this process to be carried out in a way that is most appropriate to the present circumstances in Afghanistan, the political parties themselves should become involved. Further, they should become involved in collaboration with the legal professions, to the extent that those are or can be interested in becoming independent of government. A natural partnership between law and politics is always possible, and a fruitful and productive relationship can be nurtured.
The draft Political Parties Law, in either of the versions currently available, is arguably not in the interests of political parties as organs independent of government and is not conducive to the development of the rule of law overall in Afghanistan. This is not, however, for the international community to decide; it is for people of Afghanistan to decide. In addition, such arguments, to the extent that they are appropriate in Afghanistan today, are not going to be attractive to the Transitional Authority, which has a particular interest in a particular sharing of power in that country. The Transitional Authority is not in an independent position with respect to this issue.
What is at stake is the balance of power at the beginning of the democratic era, and how that balance of power is to be established. If those who seek to establish or compete for power now, from outside of the existing power bases, are denied the ability to strive for that goal, the democracy experiment will have been dealt a very serious blow at the outset, one which it will take many years to overcome. Further, the fear of political activism, and the very real basis for that fear, will only increase as the election approaches. It is incumbent on the international community to mount a capacity-building program now that will offer, to all those who wish it, the development of skills that will enable them to challenge government and existing power-holders, on the basis of the rule of law. The argument is very strong, based on international standards, that this draft law is not in accord with the rule of law. We must accept the responsibility to assist those who wish to mount that argument.
It is recommended in the strongest possible terms that a program be designed and mounted as rapidly as possible to encourage and assist in at least the following:
- to address the political parties and the legal professions (separately at first) regarding the possibility of engaging the Transitional Authority on the draft Political Parties Law;
- to examine the law itself from the perspective of Afghan constitutional, legal, customary and tribal histories;
- to consider similar laws in other countries, in order to develop a comparative outlook and perspective, whether those models are recommended for adoption or not;
- to determine what if any revisions should be recommended (without assuming that there will be unanimity on this);
- to identify ways of presenting the results of this thinking (submissions, consultations, lobbying, the media);
- to consider a plan of action, or several, depending on the outcome(s) of such actions.
In line with one of the basic premises of institution- and capacity-building, which is that local and national capacity and institutions must be developed, of course an initial approach would have to be made to politicians, lawyers and activists to determine their interest in such a program. Presuming a positive response, the design and launch of such a program would not be overly complex.
This is not in any way to retreat from the general recommendations with respect to political party development made in the earlier report (Topical Report #4), which, it is submitted, may be relied upon with a high degree of confidence. However, in a pre-rule-of-law society, and in a pre-political party environment, the questions raised in this addendum, all of which are contained within the larger report, are the most critical, as these questions will determine the overall development of political parties and their ability to compete for power in an election that may then be determined to be free and fair. Presuming the necessity for a political party law (a question addressed in the earlier report), then its appropriateness overall for Afghanistan and its acceptance by the people and the parties, both of which can be determined only by the people of Afghanistan, go to the integrity of the election itself.
1 Received from Elections Canada, un-dated, headed "Afghanistan: Unofficial translation by British Embassy of Political Party Law", hard copy only.