Safeguarding the Democratic Process in Afghanistan Position on End of Presidential Term-in-Office and the Formation of Caretaker Government Council of Presidential Candidates Kabul, 19th May 2019

Who are we? • Eleven candidate from a cross the entire spectrum of Afghan politics • Committed to the democratic process and integrity of the upcoming elections • Convinced that the incumbent is an obstacle to elections as well as peace; • Sharing commitment to: • Islamic and Afghan values; • National unity; • The Islamic Republic; and • Supremacy of the constitution

Our agenda! • President’s constitutional term ends on 22nd of May • Constitutional transition is in crisis due to failure of Government to hold Presidential elections • President is seeking to illegally extend his term for an indefinite period • Extension of term is not only illegal, it is politically divisive and dangerous for the country • We as candidates must take a position in the interest of the country

The Legal Case

Constitutional Impasse Article 61: “The presidential term shall expire on 1st of Jawza of the fifth year after elections.” The first part of Article 61 has sufficient clarify that the term of the President expires on a specific date. However, the incumbent has conveniently tasked – in clear contravention of the law – the Supreme Court to highlight the second part of the Article as the basis for extension of his term until after the elections.

Constitutional Impasse Meanwhile, the same Article 61 clearly creates the obligation upon the President, as the Custodian of the Constitution, to hold Presidential Elections within a specific time- frame prior to end of his/her term. There is no provision, in substance or spirit, that this failure shall be rewarded with extension of term. Article 61: “Elections for the new President shall be held within thirty to sixty days prior to the end of the presidential term.”

Constitutional Impasse • Holding elections is a constitutional duty of the President • Presidential Elections were to be held on the 22nd April 2019 • However, despite five-years in office, without any legitimate reason, the President has failed to prioritise elections, resulting in the current constitutional impasse • The current situation is not a force majeure – it is a wilful negligence of constitutional duty

Adding insult to injury… • President is helping himself to a free extension! • No time limit – the extension is effectively indefinite • Negligence of one constitutional duty followed by violation of another duty

The Legality of Extension • The expiry of Presidential Term is one of the most specific provisions of the Afghan Constitution, specified for 1st of Jawza (Article 61). • Only under the State of Emergency, the term of office for the president can be extended. (Article 146) • However, invoking the State of Emergency has Constitutional rules that are neither applicable to the current situation nor currently pursued by the President. • Constitutional provision is NOT open interpretation by the Supreme Court • Arg cannot initiate request bypassing the Constitutional procedure • AND…..Political violations of the past cannot set legal precedents

And not to forget….the NUG case! • The formation of the NUG was based on an agreement signed by two individuals under international auspices. • This NUG agreement has long been breached at its core and is no longer valid. • For example, on the basis of Article (2) of the Joint Statement of 8 August 2014 and its attachments concerning the “…convening of a Loya Jirga in two years to consider the post of an executive prime minister”, “the President is committed to convening a Loya Jirga for debate on amending the Constitution and creating a post of executive prime minister”. • No Loya Jirga was held, and similarly, many other commitments of this agreement were not implemented

The Political Case

Failure must not be rewarded with extension of term in office! • Electoral reform and free and fair conduct of elections were the first commitment of the NUG under the Political Agreement • However, electoral reform has not happened • Parliamentary elections were a fiasco • Presidential elections – twice postponed – are already a failure

• Divisive politics of the President are at the roots of the crisis today • Arg lacks consensus because: • President is seen as obstacle to fair and transparent elections • President is seen as obstacle to peace • Abuse of authority and state resources • Legitimate fear of electoral fraud • Low confidence in the process due to weakness of IEC and other institutions Political solutions to legal matters require political consensus, but there goes another failure!

• Complete disdain for law and ethics • Use of state resources • Appointments/dismissals: • Ministers, governors, advisors • Senators (dismissing as well as appointing) • Sub-national government officials • Abuse of state power • Vengeful Dismissals • Other vengeful acts An obstacle to free, fair and transparent elections!

• The President has absolutely no respect for the rights of others to have a fair chance to compete and win • He has been campaigning illegal for months: • Provincial travels • Re-Inauguration of projects • Ticket presence in government meetings * Loya Jirga – the ultimate stunt There cannot exist a level playing field!

So much for level playing field…

And more….. RULE OF LAW? Based on report by the [Anjuman Hoqood Dan Ha-i Afghanistan] “out of the Constitution’s 162 articles, 94 articles have been violated by the NUG, mainly by the President of Afghanistan”. SECURITY? Under the leadership of the current Commander-in-Chief of the Armed Forces, government has lost control of more than half of the territory as well as over 45,000 men in uniform. This is tragedy! CORRUPTION? Despite populistic rhetoric, the government has failed to deliver a meaningful anti- corruption agenda. Afghanistan continues to top the list of corrupt countries in the world. AND FINALLY…PEACE? For the President the cause of peace is subservient to his political agenda of securing a second term. To this end, he is not only delaying and undermining current peace efforts, he is actively stoking the fire of continued conflict. DEMOCRACY? Despite symbolic actions, the Government has seriously undermined democratization. The conduct of the 2018 Wolesi Jirga elections and the totally unaccountable attitude to the upcoming Presidential Election has brought democracy to its knees.

Our Position

Our Conclusions • Constitutional provision for Government term is clear with no room for interpretation • Extension of term is illegal • Continuation of term will create legitimacy vacuum and deepen political and security crisis • Extension is also politically inadmissible because the incumbent is a candidate • To avoid power vacuum there is need for a Caretaker Government

Our Demands • The NUG leadership step down to avoid a political crisis • A grand political consensus is formed covering the entire political community to oversee a transition period • The transition period culminates either in the elections or, in case of a peace accord that requires it, in an interim government • The government machinery, including cabinet ministries, is to remain unchanged • A Caretaker Government is appointed, including President and two VPs • The term and responsibilities of the Caretaker Government are to be limited and defined

On Caretaker Government

Caretaker Government Formation: Option One THE INCUMBENT PRESIDENT GIVES UP HIS CANDIDACY FOR THE ELECTIONS AND CONTINUE HIS TERM AS “CARETAKER PRESIDENT” FROM 22 OF MAY WITHOUT GOING THROUGH ANY LEGAL MECHANISMS OR GAP TILL THE END OF THE DURATION OF THE CARETAKER GOVERNMENT. THIS OPTION ALSO APPLIES TO THE CURRENT VICE PRESIDENTS WHO MAY CONTINUE AS CARETAKER DEPUTIES IF THEY RENOUNCE THEIR CANDIDACY

Caretaker Governmen t Formation: Option Two THE INCUMBENT CANDIDATES STEP DOWN. A GRAND ASSEMBLY OF POLITICAL AND CIVIC LEADERS FROM THE ENTIRE POLITICAL SPECTRUM, INCLUDING PRESIDENTIAL CANDIDATES, IS FORMED. ELIGIBLE CANDIDATES ARE NOMINATED THROUGH REGISTERED POLITICAL PARTIES AND CIVIC ORGANISATIONS. A SELECTION PROCEDURE IS AGREED BY MEMBERS OF THE ASSEMBLY THROUGH CONSENSUS. A CARETAKER PRESIDENT AND TWO CARETAKER VICE PRESIDENTS ARE SELECTED.

Caretaker Government: Key Principles 1.CARETAKER PRESIDENT/VICE PRESIDENTS MUST BE NON- PARTISAN AND HAVE SAME CRITERIA AS SPECIFIED IN ARTICLE 62 OF CONSTITUTION 2. CARETAKER PRESIDENT/VICE PRESIDENTS CANNOT BE CANDIDATES IN THE ELECTIONS 3. TERM OF THE CARETAKER GOVERNMENT WILL END UPON ANNOUNCEMENT OF RESULTS OF THE 28 SEPTEMBER PRESIDENTIAL ELECTIONS 4. CARETAKER GOVERNMENT WILL BE SUBJECT TO ALL CONSTITUTIONAL CHECKS AND BALANCES, INCLUDING PARLIAMENTARY OVERSIGHT 5. THE COUNCIL OF PRESIDENTIAL CANDIDATES WILL MONITOR THE CARETAKER GOVERNMENT’S ELECTION RELATED ACTIVITIES

Caretaker Government: Core Duties 1. CONDUCTING THE UPCOMING ELECTIONS IN A FREE, FAIR AND TRANSPARENT MANNER 2. LEADING THE AFGHAN PEACE PROCESS 3. ENSURING A SMOOTH TRANSFER OF POWER TO THE ELECTED GOVERNMENT OR, IN CASE A CONCLUDED PEACE PROCESS REQUIRES IT, A INTERIM GOVERNMENT

Our Strategy

To ensure that our demands are fulfilled, we will: In the case of the continuation of the NUG post-22nd of May, we will work collectively to advocate for the Government to step down and allow a non-partisan Caretaker Government to be formed. Advocate We will reach out to the entire political spectrum of the country to build a grand political consensus in support of our demands. We will use the political consensus to apply continued pressure on the Government. Pressure As a last resort, and should the President continue to ignore our demands and his Constitutional duty to ensure a level playing field for the Presidential Elections, we will engage in peaceful protests and, if necessary, actions of civic disobedience. Protest

From our international partners, we expect: Legitimacy of politics is crucial for stability. Therefore, we expect our international partners to remain engaged in this process and closely observe the legal and political impasse. Observation We count on continued support from the international community for the integrity of the electoral process and the fair, free and transparent conduct of the upcoming Afghan Presidential elections. Support

On Limiting Government Powers

To ensure integrity of elections, Government Powers must be curtained in these areas with immediate effect: Appointments and dismissals Access to state resources Integrity of Election

Limiting Appointments Power 1. A joint monitoring body, consisting of representatives from Presidential Candidates, political parties and international community, is to be established. 2. The body is to monitor and ensure that all appointments for the following positions are done on the basis of merit, free from political considerations: • At Provincial Level: District administrators, provincial governors, provincial directors, including of customs, police chiefs including border police chiefs and employees of the IEC and ECC. • At the Center: Ministers, deputy ministers, heads of general directorates, employees of IEC and ECC, senators, presidential advisors, advisors to ministers and commanders of security departments. 3. Review by the joint monitoring body of all appointments in the above mentioned categories that are done since announcement of election calendar, and reversal of those appointments if inconsistent with the principle mentioned above. 4. Review by the joint monitoring body of all dismissals in the period specified above and reversal of those dismissals if inconsistent with the principle mentioned above. 5. Creating a formal process whereby senior officials make commitments to respect law and refrain from any interference in the election process. 6. Legal and administrative correction measures against persons who commit violations.

Access to State Resources 1. Enactment of Procurement Law to enhance transparency by ensuring, among other measures, the following: • Taking the Procurement Function out of the President’s Office. • Facilitating greater transparency by allowing political and international monitoring of procurement process. 3. Review of all projects and contracts that have been awarded on a ‘single source’ basis and take necessary corrective measures. 4. Investigation of corruption cases as related to the elections, including the procurement of biometric devices for the 2018 parliamentary elections. 5. Guaranteeing equal opportunities to all candidates by ensuring security services provided by state are available to all candidates and their teams commensurate to their security needs. 6. Providing other non-security services that are critical to election to all candidates, including logistical and transportation facilities.

Integrity of Election System 1. Putting in place a joint monitoring mechanism of presidential candidates, political parties and civil society, including at the provincial level, to monitor the election process and ensure the application of relevant laws and codes of conduct. 2. Implementation of necessary electoral reforms 3. Ensuring independence of electoral bodies, including their Secretariats and their ability to conduct recruitment.

Thank you!