Published on 04 Jul 2012 at 08:54
It is hardly a secret that money plays a role in Afghan electoral politics. Previous elections have showed large amounts of spending of money from unknown sources, and the “charity” of candidates has often degenerated into outright vote buying. In addition, when the Free and Fair Election Foundation of Afghanistan (FEFA) monitored campaign finance during the 2010 elections, “...field monitors reported a series of instances of abuse, including illegal use of government facilities, preferential coverage of some candidates on state operated television, and state employee involvement with campaigns while on duty.”
An underlying problem is the lack of transparency in Afghan campaign finance. In the same report, FEFA noted that “62% of the selected candidates reported a smaller amount to the IEC than FEFA recorded through its monitoring. In one instance, FEFA found that the comparative difference between the estimated total expenditures and reported expenditures was 1,495%.”
There were some regulations in place for the 2009 and 2010 elections, but due to huge gaps in the legislation, these regulations had to be created by the Independent Electoral Commission (IEC). The 2005 and 2010 Electoral Acts did admittedly declare as electoral offences the activities of vote buying and using illegal and foreign funds “for the purpose of influencing the electoral process” (Art 53 in the 2005 Act, Art 63 in the 2010 Act). However, these were also the only aspects of campaign finance that are dealt with in the law. There were no requirements for candidates or political parties to submit financial reports, no limits on contributions or spending, and no provisions for public funding (other than access to state owned media). In practice therefore, the Electoral Act left the responsibility of regulating campaign finance to the IEC through a reference in Article 66 giving the Commission the mandate to “issue rules to regulate electoral campaign period“. The entire financial reporting systems created by the IEC for the 2009 and 2010 elections (and which represented significant steps forward), were based on only indirect support in legislation.
This is a major problem, as issues of this magnitude need to have a clear backing in legislation. In this light, it is unfortunate that the suggested revision to the Electoral Code currently being discussed contains very little in terms of campaign finance regulations. In October 2011 the Political Finance Working Group in Afghanistan made several recommendations for legal reform. These suggest clarification of the role of the IEC and the strengthening of its sanctioning powers, reporting requirements to the Commission for candidates and contributors, and the introduction of contribution and spending limits. Other recommendations included the banning of indirect vote buying, the use of specific campaign bank accounts, limits on spending on advertising, and waiving the candidate deposits for women candidates. The role of the Electoral Complaints Commission (ECC) in applying sanctions was also emphasized.
The new draft Election Law (submitted to the Ministry of Justice on June 11) hardly addresses any of these issues. Admittedly, it does not remove any of the provisions from the previous laws. The bans on vote buying and on using illegal or foreign funds are included in Art 53 of the draft law.
The new draft Election Law (submitted to the Ministry of Justice on June 11) hardly addresses any of these issues. Admittedly, it does not remove any of the provisions from the previous laws. The bans on vote buying and on using illegal or foreign funds are included in Art 53 of the draft law. The draft also provides, as the previous ones did, for the provision of access to state media for candidates (Art 42 in the draft law).
An earlier provision banning the abuse of state resources is also repeated in a slightly revised wording, stating (Art 5.1 and 5.2): “Use of the government assets, facilities and resources in favor or against a candidate or candidates is not allowed. Equal use of state owned and public resources and facilities in accordance to the provisions of this law will be explained in the relevant procedures.” (This was included in Art 7 in the 2010 law.)
Unfortunately, that is it. Most importantly, there are no reporting requirements for candidates to submit financial reports in the law, which is a failed chance to build on the success of the IEC work in this field in previous elections. Related to this, there are no regulations that candidates need to maintain campaign bank accounts or keep any kind of records regarding their income or spending. There is also no mention of limits for contribution or spending, nor an explicit provision that the IEC can set such limits. The regulations regarding the Elections Supervising Commission (effectively taking over from the ECC) do provide for candidates to be disqualified if vote buying is proven, though only if the violation was such as to affect the election results (Art 54). There is no clarity of the role of Elections Supervising Commission in imposing sanctions in relation to regulations passed by the IEC (the Commission maintains this right according to Art 65 of the draft law).
Overall, the draft revision of the Electoral Law represents a missed opportunity to effectively regulate campaign finance in Afghanistan by building on the work by the IEC in previous elections and on recommendations from the Political Finance Working Group. Given that there are several years until the next general elections in Afghanistan, now is the right time to introduce carefully considered reforms. In this context, the provisions regarding political finance included in the Political Parties Act should also be considered, so that the ongoing finances of political parties can be made subject to better controls. Finally, Afghan legislation in general needs to be reviewed to better prevent and sanction abuse of state resources in the political process.
Dr Magnus Ohman based his comments on an English translation of the draft Election Law issued by the IEC in May 2012.
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