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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
Why Europe’s Plan to Send Afghan Refugees Back Won’t Work
Why Europe’s Plan to Send Afghan Refugees Back Won’t Work
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

Op-Ed / Asia

Why Europe’s Plan to Send Afghan Refugees Back Won’t Work

Originally published in POLITICO Europe

There is no quick fix to the refugee crisis; in fact, a short-sighted response raises difficult moral and practical questions.

As the global refugee crisis dominates the political agenda and Europe considers repatriation of refugees to supposedly conflict-free parts of Afghanistan, they would do well to consider people like the Basharpals.

The Basharpal family — father, 38, mother, 37, and their four children — originally fled Afghanistan in early 2015 and made it to Norway. Last month, they were deported back to Afghanistan. As they awaited local resettlement, a bomb went off some 100 meters from their hostel.

When I spoke to Mirwais Basharpal early in September, he and his family were once again preparing to embark on the dangerous and illegal trip to Europe.

Afghan refugees make up the second-largest group of migrants in Europe. In 2015, approximately 200,000 Afghans — less than 4 percent of the 6 million Afghan refugees worldwide — arrived in Europe.

Faced with the biggest influx of migrants since World War II, the EU has drafted a plan to deport 80,000 Afghan asylum seekers back to Afghanistan. This is a politically driven response to a humanitarian crisis: an attempt to restrain rising xenophobia and the growth of right-wing political parties across the Continent. In May, the Austrian anti-immigration Freedom Party came close to winning the presidency. In Berlin state elections this past Sunday, Alternative for Germany (AfD) — a populist party that was formed only three years ago — cleared the 5 percent threshold to enter the state assembly.

The repatriation of asylum seekers and proposed resettlement programs by European countries raise difficult moral and practical questions in the face of continued insecurity, limited economic opportunities and the inability of the Afghan government to manage such high numbers of returnees.

Although the Afghan economy is struggling as international engagement winds down, what drives Afghans to leave their country is growing fear of conflict.

The global community is faced with two problems: finding a way to stem the tide of refugees and creating conditions for families like the Basharpals to return safely to their homes. In the case of Afghan refugees, the answer to both problems is the same: better security.

A survey last year by the Asia Foundation suggests that although the Afghan economy is struggling as international engagement winds down, what drives Afghans to leave their country is growing fear of conflict.

The security situation in Afghanistan remains extremely fluid. Provinces that were considered safe a few years ago are once again dangerous. The main highway heading north from Kabul, once one of the safest roads in the country, is now frequently attacked by the Taliban. The United Nations Assistance Mission in Afghanistan reported a sharp increase in the number of civilian casualties in its annual report on the protection of civilians in armed conflict in Afghanistan. According to the U.S. State Department, “travel to all areas of Afghanistan remains unsafe.” They also warned that “extremists associated with various Taliban networks, Islamic State of Iraq and the Levant–Khorasan Province (ISIL-KP), and members of other armed opposition groups are active throughout the country.”

With the latest gains by the Taliban, there is a widespread perception that security is deteriorating and militants of various groups are gaining ground. Over 30 percent of all districts in the country (116 of 384) are under serious threat, while 91 districts face a “medium threat” from insurgent groups, according to a recent Independent Directorate of Local Governance report. “Repatriation efforts are unrealistic and against the UNHCR Internal Flight or Relocation Alternative guidelines as evidenced from recent attacks in Kabul,” said Abdul Ghafoor, a prominent refugee activist in Kabul.

Unemployment stands at around 35 percent with an additional 300,000 to 400,000 young people entering the job market annually. Afghanistan’s small private sector — a mere 10 to 12 percent of the country’s official GDP — has been hit hard since 2014 with the reduction of aid and international contracts, causing thousands of Afghans to lose their jobs.

Europe’s current short-term, political, domestically inspired response to a humanitarian crisis of this magnitude is counterproductive.

There is strong evidence that repatriating Afghan refugees does not work. Returnees do not necessarily stay in Afghanistan once deported, as the Basharpal family shows. As Mirwais Basharpal put it, “There is no security. My children spent nine months in Norway and three years in Russia. They won’t be able to adjust here. I cannot return to my district in [the eastern province of] Nangarhar because of the Islamic State presence. I feel embarrassed to tell my relatives about our deportation.”

Refugee outflows on the scale of Afghanistan or Syria are the inevitable fallout of a failed state. There is no quick fix to the refugee crisis in Afghanistan or elsewhere, and Europe’s current short-term, political, domestically inspired response to a humanitarian crisis of this magnitude is counterproductive.

The international community needs to recognize that alleviating suffering is no substitute to preventing it. Triage in Afghanistan involves maintaining sufficient military and financial support to prevent security and the economy deteriorating more rapidly, and giving families like the Basharpals confidence that they have a future in the country in which they were born.