Chapter 1: International Standards
reform agenda and could decrease the number of decisions made in an
arbitrary manner or under political pressure.
These principles of impartiality are further complicated by the level of political stability of a country. The Electoral Complaints Commission in Afghanistan provides a strong post-conflict country example for maintaining the requirement of impartiality, while also showing the limitations
of such mechanisms. For the 2009 elections, the Commission included
three international commissioners appointed by the United Nations Special Representative of the Secretary-General (SRSG) for Afghanistan, one
commissioner appointed by the Afghan Independent Human Rights Commission and one commissioner appointed by the Supreme Court of Afghanistan. Originally, the rationale for the composition of the ECC was to
ensure support from the international community through the presence of
international electoral experts and to ensure impartiality through the presence of Afghan nationals. There has certainly been substantial criticism
of this balance of Afghans and foreigners. However, if the ECC were to
be staffed exclusively with Afghan nationals, it could be difficult to ensure
independence and impartiality due to the arguably high level of corruption
that still exists within Afghan institutions. Moreover, the involvement of
international experts at the ECC was important to try to overcome ethnic
tensions that still exist in Afghanistan.
In preparation for the 2010 Parliamentary elections, the Afghan government adopted a new electoral law122 that does not explicitly require that
ECC commissioners be Afghans, but states that they should be appointed
by the President after consultation with the speakers of both houses and
the head of the Supreme Court. The President also appoints members
of the Provincial Electoral Complaints Commissions (PECC). The law is
silent on the qualifications or on the number of both PECC and ECC commissioners. These changes do little to address the risk of partiality in the
nomination of judges or arbiters, or the lack of confidence in the composition of the ECC.
122
Electoral Law, art. 61 (2004) (Afg.); PresIdent of Islamic Republic of Afghanistan, Decree
on the Appointment of Election Complaints Commission Members, April 18, 2010, available
at http://www.ecc.org.af/en/images/stories/pdf/16Apr10 percent20Pres percent20Decree
percent20est percent20ECC.pdf.
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