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Afghanistan: The Long, Hard Road to the 2014 Transition
Afghanistan: The Long, Hard Road to the 2014 Transition
Table of Contents
  1. Executive Summary
Keeping Intra-Afghan Talks on Track
Keeping Intra-Afghan Talks on Track
Report 236 / Asia

Afghanistan: The Long, Hard Road to the 2014 Transition

Afghanistan is hurtling toward a devastating political crisis as the government prepares to take full control of security in 2014.

Executive Summary

Plagued by factionalism and corruption, Afghanistan is far from ready to assume responsibility for security when U.S. and NATO forces withdraw in 2014. That makes the political challenge of organising a credible presidential election and transfer of power from President Karzai to a successor that year all the more daunting. A repeat of previous elections’ chaos and chicanery would trigger a constitutional crisis, lessening chances the present political dispensation can survive the transition. In the current environment, prospects for clean elections and a smooth transition are slim. The electoral process is mired in bureaucratic confusion, institutional duplication and political machinations. Electoral officials indicate that security and financial concerns will force the 2013 provincial council polls to 2014. There are alarming signs Karzai hopes to stack the deck for a favoured proxy. Demonstrating at least will to ensure clean elections could forge a degree of national consensus and boost popular confidence, but steps toward a stable transition must begin now to prevent a precipitous slide toward state collapse. Time is running out.

Institutional rivalries, conflicts over local authority and clashes over the role of Islam in governance have caused the country to lurch from one constitutional crisis to the next for nearly a decade. As foreign aid and investment decline with the approach of the 2014 drawdown, so, too, will political cohesion in the capital. To ensure political continuity and a stable security transition, action to correct flaws in the electoral framework and restore credibility to electoral and judicial institutions is needed well before the presidential and provincial council polls. Tensions have already begun to mount between the president and the Wolesi Jirga (the lower house of the National Assembly), as debate over electoral and other key legal reforms heats up. Opposition demands for changes to the structures of the Independent Elections Commission (IEC) and Electoral Complaints Commission (ECC) and an overhaul of the Single Non-Transferable Vote (SNTV) election mechanism have become more vigorous by the day.

There is also, as yet, no sign of an agreement on the timing of the 2014 elections or the following year’s parliamentary elections, though President Karzai insisted on 4 October that the former would be held on time and “without interruption”. The IEC has hedged on publicly announcing the planned postponement of the provincial council polls, for fear that such an announcement could deepen the political crisis. At a minimum, the IEC must announce a timetable and a plan for the 2014 elections that adhere closely to constitutional requirements by December 2012, and a new IEC chairman must be selected to replace the outgoing chairman, whose term expires in April 2013, as well as a new chief electoral officer.

It is a near certainty that under current conditions the 2014 elections will be plagued by massive fraud. Vote rigging in the south and east, where security continues to deteriorate, is all but guaranteed. High levels of violence across the country before and on the day of the polls are likely to disenfranchise hundreds of thousands more would-be voters. The IEC will likely be forced to throw out many ballots. This would risk another showdown between the executive, legislature and judiciary. Under the current constitution and electoral laws, the government is not equipped to cope with legal challenges to polling results. Nearly a decade after the first election, parliament and the president remain deeply divided over the responsibilities of constitutionally-mandated electoral institutions. The IEC, its credibility badly damaged after the fraudulent 2009 and 2010 elections, is struggling to redefine its role as it works to reform existing laws. There is also still considerable disagreement over whether the ECC should take the lead in arbitrating election-related complaints.

It will be equally important to decide which state institution has final authority to adjudicate constitutional disputes before the elections. The uncertainty surrounding the responsibilities of the Supreme Court versus those of the constitutionally-mandated Independent Commission for the Supervision of the Implementation of the Constitution (ICSIC) proved to be a critical factor in the September 2010 parliamentary polls. The Supreme Court’s subsequent decision to establish a controversial special tribunal on elections raised serious questions about its own impartiality. Institutional rivalries between the high court and ICSIC have increased considerably since then, with the Wolesi Jirga aggressively championing the latter’s primacy in opposition to the president.

The tug of war between these two constitutionally-mandated institutions has extended to Supreme Court appointments; two of nine positions on the bench are held by judges whose terms have already expired, and the terms of three more expire in 2013. The ICSIC faces similar questions about its legitimacy, since only five of its required seven commissioners have been appointed by the president and approved by parliament. Ambiguities over the roles of the Supreme Court and the constitutional commission must be resolved well before the presidential campaign begins in earnest in early 2013. An important first step would be to appoint the required judges and commissioners.

Institutional rivalry between the high court and the constitutional commission, however, can no more be resolved by presidential decree than it can by a simple parliamentary vote. Constitutional change will ultimately be necessary to restore the Supreme Court’s independence and to establish clear lines of authority between it and the ICSIC. Even if wholesale constitutional change is not possible in the near term, legal measures must be adopted within the next year to minimise the impact of institutional rivalry over electoral disputes and to ensure continuity between the end of Karzai’s term and the start of the next president’s term.

Although Karzai has signalled his intent to exit gracefully, fears remain that he may, directly or indirectly, act to ensure his family’s continued majority ownership stake in the political status quo. This must be avoided. It is critical to keep discord over election results to a minimum; any move to declare a state of emergency in the event of a prolonged electoral dispute would be catastrophic. The political system is too fragile to withstand an extension of Karzai’s mandate or an electoral outcome that appears to expand his family’s dynastic ambitions. Either would risk harming negotiations for a political settlement with the armed and unarmed opposition. It is highly unlikely a Karzai-brokered deal would survive under the current constitutional scheme, in which conflicts persist over judicial review, distribution of local political power and the role of Islamic law in shaping state authority and citizenship. Karzai has considerable sway over the system, but his ability to leverage the process to his advantage beyond 2014 has limits. The elections must be viewed as an opportunity to break with the past and advance reconciliation.

Quiet planning should, nonetheless, begin now for the contingencies of postponed elections and/or imposition of a state of emergency in the run up to or during the presidential campaign season in 2014. The international community must work with the government to develop an action plan for the possibility that elections are significantly delayed or that polling results lead to prolonged disputes or a run-off. The International Security Assistance Force (ISAF) should likewise be prepared to organise additional support to Afghan forces as needed in the event of an election postponement or state of emergency; its leadership would also do well to assess its own force protection needs in such an event well in advance of the election.

All this will require more action by parliament, less interference from the president and greater clarity from the judiciary. Failure to move on these fronts could indirectly lead to a political impasse that would provide a pretext for the declaration of a state of emergency, a situation that would likely lead to full state collapse. Afghan leaders must recognise that the best guarantee of the state’s stability is its ability to guarantee the rule of law during the political and military transition in 2013-2014. If they fail at this, that crucial period will at best result in deep divisions and conflicts within the ruling elite that the Afghan insurgency will exploit. At worst, it could trigger extensive unrest, fragmentation of the security services and perhaps even a much wider civil war. Some possibilities for genuine progress remain, but the window for action is narrowing.

Kabul/Brussels, 8 October 2012

During a rare ceasefire in 2018 in Andar, young Afghan men and boys fly both the flags of Afghanistan and of the Taliban. CRISISGROUP/Fazal Muzhary
Commentary / Asia

Keeping Intra-Afghan Talks on Track

The peace talks between the Afghan government and Taliban offer a genuine opportunity for peace although obstacles abound. In this excerpt from our Watch List 2020 – Autumn Update, Crisis Group urges the EU and its member states to continue pushing for a more inclusive peace process, specifically in terms of women’s representation in the negotiations, avoid singling out the Taliban as responsible for obstacles for peace, and reassure the Afghan government by continuing aid into the future.

This commentary is part of our Watch List 2020 - Autumn Update.

September saw the start – at long last – of peace talks between the Afghan government and Taliban. The U.S. had been trying to kick off such negotiations for most of 2020, since signing its own agreement with the Taliban on 29 February. Yet the onset of talks stalled for months; the Afghan government resisted the release of Taliban detainees to which the U.S. had committed, while the insurgents continued to carry out acts of violence, defying President Ashraf Ghani’s long-sought request for a ceasefire before commencing peace talks. The intra-Afghan talks offer a genuine opportunity for peace although obstacles and risks abound. The continued violence first and foremost: although the Taliban scaled back attempts to seize territory and monitors reported fewer combat deaths than in previous years, targeted killings rose, and the civilian casualty toll remained among the world’s highest. On the government side, Afghan leaders have spent the year deadlocked over political appointments, rendering governance increasingly dysfunctional. As for the U.S., its approach seems guided by the desire to disengage its troops as soon as possible. Many Afghans and international observers are concerned that a hasty settlement could result in degradation of civil liberties and human rights, especially women’s rights, as well as regression into state fracture and full-fledged civil war. 

To help avoid those outcomes, the European Union and its member states should: 

  • Continue pressing for a more inclusive peace process, particularly in terms of women’s representation in the Afghan government’s negotiating team and affiliated bodies. Europeans should also provide support to civil society initiatives that complement the formal negotiation process and promote peace at grassroots level.
     
  • Call upon all Afghan political figures to uphold the May agreement between President Ghani and Abdullah Abdullah, and encourage Ghani to respect provisions specifying Abdullah’s authority.
     
  • Ensure unified messaging among member states so as to best use Europe’s principal sources of leverage – financial assistance and economic engagement with a future government – to nudge negotiations forward.
     
  • Avoid singling out the Taliban as responsible for threats or obstacles to peace; instead, make clear that any action destabilising the peace process, including by the government, deserves condemnation. Brussels should balance its support for the Afghan government with acknowledgment that the Taliban will be a major political force in any post-peace Afghan order.
     
  • Reassure the Afghan government by committing to continue aid into the future. European leaders could qualify such reassurances and align them with EU principles by allowing for re-evaluation in the event of changes to the government in a peace settlement, as the EU did in its May Council conclusions.

The Hard Road to Talks

An atmosphere of nervous anticipation prevailed in Afghanistan when the U.S. and Taliban signed an agreement in Qatar’s capital Doha on 29 February, laying out a timetable for the withdrawal of foreign troops in exchange for anti-terrorism guarantees and a promise to commence intra-Afghan negotiations. A historic week of reduced violence across the country preceded the accord. Though not technically a ceasefire, this period saw a significant drop in fighting between Taliban and Afghan security forces. It was the insurgent movement’s first major gesture of good-will toward Kabul since its ceasefire declaration during Eid al-Fitr in 2018. 

Any positive feeling quickly dissipated, however, as the Afghan government publicly rejected the terms of the prisoner exchange to which the U.S. had committed in Doha and the Taliban responded by announcing a resumption of hostilities. Fighting picked up across the country, albeit at a lowered intensity that seemed tied to the Doha agreement (although it was not spelled out in the public text). The Taliban carried out fewer high-profile attacks in cities than in previous years and limited their large-scale assaults on government forces. The insurgent group made none of its traditional annual attempts to overrun provincial capitals and did not announce its usual spring offensive. Afghan security forces maintained a largely defensive posture, which officials claimed was a demonstration of the government’s commitment to peace, but almost certainly also owed to the near cessation of U.S. airstrikes after 29 February. Those strikes contributed to record levels of civilian casualties in 2019, and observers hoped that casualty figures would plummet in 2020. The war continued to take a high toll, however, as the rates of targeted killings and small bombings climbed in many parts of the country. These included two attacks on prominent women’s rights activists in Kabul.

The U.S. waded into Kabul politics when contestation of the 2019 presidential election results escalated into full-scale dysfunction.

Meanwhile, the U.S. applied pressure on both sides, dragging the prisoner exchange forward, as the government and Taliban let prisoners go in small batches. The releases stretched into September before reaching the 29 February agreement’s promised totals. The U.S. also waded into Kabul politics when contestation of the 2019 presidential election results escalated into full-scale dysfunction. Just days before 29 February, President Ghani was declared winner by the narrowest of margins, without official clarity on multiple vote recounts and audits. His chief challenger, Abdullah Abdullah, and allied politicians threatened to not only protest the results but also establish a “parallel government”. Abdullah’s staff refused to vacate Presidential Palace grounds (where they had been working as part of a power-sharing deal struck between Abdullah and Ghani after the previous election in 2014). The standoff prevented politicians from agreeing on the composition of a negotiating team to represent the government in intra-Afghan talks – which donors, including the EU and member states, had repeatedly urged Ghani to do – until late March. Perhaps in part due to acrimony over appointing the negotiators and powerbrokers’ jockeying to place loyal representatives on the team, only four women ultimately were included in a team of 21. Abdullah and Ghani did not reach a governing compromise until late May. Since then, the two leaders and their allies have repeatedly disagreed on appointments of officials and delineation of authority, reminding Afghans of the disputes that plagued the power-sharing government of 2014-2019. 

This deadlock coincided with the spread of COVID-19 across Afghanistan. The virus appears initially to have been transmitted primarily by migrant workers returning from the global hot-spot of Iran. The Afghan government struggled to check what became an unfettered spread. In August, health officials announced that random sampling – actual testing was minimal – suggested that the virus had infected more than 50 per cent of Kabul residents and over 30 per cent of the national population. Lack of reporting made it impossible to measure the death toll with any accuracy. The severe economic impact of lockdowns, however, was evident within weeks, leading many Afghans – including many officials – to ignore restrictions in most of the country outside Kabul. The Taliban publicised a number of COVID-19 initiatives in areas under their control, but many of these reportedly lacked enforcement or follow-up. The group continued to reject international calls for a ceasefire, even in the name of a “humanitarian pause” to enhance the public health response.

By the start of intra-Afghan talks in September, high-level sources told Crisis Group that the Afghan government was considering arming and funding new networks of militias across the country, outside the security forces’ hierarchy and only loosely controlled by the Afghan intelligence agency. Such reports, which have circulated widely among Afghans, amplify fears many already have about the potential impact of peace talks on human rights: not only could talks herald a return to political power of the Taliban, whose abuses many Afghans recall all too well, but they might also lead to the proliferation of government-affiliated militias, who have their own terrible track record. Fears of predation by armed groups of all stripes are hardly new – the EU Council addressed them in its May conclusions. But they have grown amid increasing unclaimed attacks on activists, the U.S.’s announcement of further troop drawdowns and political infighting in Kabul that some worry could create space for extrajudicial action by the security forces. 

Amid these many concerns, the first days of talks between the Taliban and the government-appointed negotiating team already give a taste of the hurdles that lie ahead. While negotiating the rules and procedures to govern the talks, the two sides tangled over what Islamic legal interpretation should be used to mediate future dis­agreements (the government team insisted on acknowledging Shia Islam and non-Muslim minorities’ existence in the framework of the talks, which the Taliban have rejected). The Taliban have yet to fully articulate what they believe a future Afghan state should look like, as Crisis Group has noted. It is far from clear that the Taliban’s vision will be acceptable to other parties and the many Afghans who fear the Taliban may wish to curtail rights and freedoms. What the insurgents have made clear is their stance on a ceasefire. They reject any discussion of a lasting and comprehensive one until, as their spokesperson said, “the root causes of the war” – ambiguous language that could mean anything from the West’s influence, to the exclusion of parts of population from power, to the abuses of government-allied strongmen – are addressed. With current levels of violence having climbed throughout 2020, this may be the most immediate potentially destabilising factor as talks progress.

A Role for the EU and Its Member States

As the intra-Afghan talks proceed, the EU can exert a positive influence. First, it should expand its support for civil society. Given Afghanistan’s contentious politics and its weak formal institutions, civil society's participation in the peace process will be vital to ensure the representation of popular interests and preferences. The EU has already affirmed its commitment to the protection of human and women’s rights and encouraged strong representation of women in intra-Afghan talks, but it should promote efforts that go beyond the structure of formal negotiations to lay grassroots groundwork for lasting peace. Afghanistan’s National Action Plan for implementing UN Security Council Resolution 1325 on Women, Peace and Security is regarded by experts as a “top-down” approach, which should be balanced by EU support to local initiatives such as local councils that advocate for peace. This approach could involve greater cooperation with the UN mission in Afghanistan, with its infrastructure and networks of field offices capable of extending peacebuilding’s reach. The EU should review and report on earlier civil society and development efforts in Afghanistan to support peacebuilding, some of them initiated more than a decade ago, to identify effective initiatives.

Secondly, the EU can help steady the Afghan government’s negotiation approach by offering its good offices to ensure a smoother, more streamlined dialogue to implement the political compromise between President Ghani and Abdullah. Disputes between Ghani and opposition leaders have already hampered governance and they will almost certainly bleed over into the negotiating team’s internal deliberations during talks. The peace process cannot succeed without genuine inclusion of a broad range of political elites in both the talks and the tasks of governance while negotiations are ongoing. Moreover, the political wrangling among elites has reportedly hamstrung civil society efforts to engage with the peace talks: different political factions are now competing for authority over every aspect of the process, which could have the effect of impeding civil society participation. By ensuring that Ghani and Abdullah continue to communicate on and implement their power-sharing commitments, the EU can help mend relations that in turn will improve the negotiators’ effectiveness.

The EU should seek to ensure that member states deliver a unified message.

The EU should seek to ensure that member states deliver a unified message. As the EU stated in its May conclusions, it can use the prospect of financial assistance to and economic engagement with a future government to nudge negotiations forward. But that leverage is only as strong as member states’ unity. Since issuing those May conclusions, European governments have diverged in their reactions to prisoner exchanges, and uncertainty lingers about their views on a major planned donor conference in Geneva. Several European diplomats told Crisis Group that although public unity on Afghanistan policy has been maintained, member states’ own diplomatic engagements have softened or strayed from the common line.

The EU’s influence over the Afghan peace process, and any outcome that may result, depends in large part on whether Afghan parties – including the Taliban – perceive it as a fair interlocutor. Almost any successful settlement will include the Taliban’s re-entry into Afghanistan’s political system. The EU’s current conditions, in particular its explicit rejection of the Taliban’s concept of an Islamic Emirate and its several public disapprovals of Taliban actions, without similar recognition of the Afghan government’s stalling ahead of talks, have been characterised by the Taliban as interference in Afghanistan’s sovereignty. As talks proceed, the EU and European leaders should make extra effort to appear to be more open to a greater Taliban role.

Most importantly, the EU and member states should commit to continue aid and development support to the Afghan government. They should do so before the end of 2020, in spite of the uncertainties surrounding the peace process and U.S. Afghanistan policy. They could qualify such reassurances and align them with EU principles by making clear that aid would be subject to re-evaluation in the event of changes to the government as part of a settlement, as the EU did in its May Council conclusions. This pledge would be the greatest possible show of support for the Afghan government as it negotiates an end to the war, and it would demonstrate to the Taliban that Afghanistan’s international partners remain invested in the post-2004 constitutional order and the gains it has won. It would be another incentive for both sides to reach an agreement.