The ongoing political deadlock in Afghanistan is rooted in the vagueness of Article 61 of the country's constitution, referring to the election of the president and his or her term in office. As per the article, the current tenure of incumbent President Ghani runs out on May 22, 2019.
The constitution says that the elections should be held 30 to 60 days before the end of the presidential term. However, it doesn't mention anything about what should happen if elections are not held. It doesn't say whether the sitting president's term should be extended until elections are held or whether transitional governance arrangements should be put in place for the interim period.
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With the next presidential elections planned for late September this year, Ghani's opponents are increasingly calling on him to step down after his term ends on May 22 and hand over power to a caretaker administration to ensure a free and fair election. If Ghani decides to continue as president during the interim period, they say, he should withdraw from the next presidential race.
"In case the current president withdraws from the presidential race, he can remain as acting head of government beyond the first of Jawza [May 22, 2019] without going through any other legal mechanisms," Faramarz Tamana, a member of the Council of Presidential Nominees which includes 13 out of 18 candidates for the highest office in Afghanistan, told a press conference on Tuesday.
Opponents and critics fear that if Ghani is allowed to remain in office during the interim period, he could postpone elections indefinitely to remain in power. "If the president continues to postpone elections, will the Supreme Court and you [the people of Afghanistan] agree with him [to continue his work]?" asked Mohammad Haneef Atmar, another member of the council who is considered one of the few presidential hopefuls who could pose a real challenge to Ghani in elections.
But Ghani has already rejected the demands of his opponents. In April, the president knocked on the doors of the country's Supreme Court to find a legal basis for the extension of his term until the polls. The court on April 21 ruled that the president and his cabinet can stay until the next president takes office. The ruling drew sharp criticism from Ghani's opponents and some experts of Afghan law.
Ghani and his officials were quick to dismiss the criticism, saying that the Supreme Court was the only institution that was in a position to make a decision on this issue. "Political parties and individuals cannot interpret the constitution as they desire," presidential palace spokesman Haroon Chakhansuri wrote on Facebook on Tuesday, adding that the "suggested mechanisms by some candidates do not have any legal basis."
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But it is not just Ghani's political opponents who criticize the president's moves. Many experts on Afghanistan's constitution also believe that Ghani's actions violate the charter. "It is yet another violation of the constitution by President Ghani's government," Gul Rahman Qazi, former head of Constitution Implementation Watch Commission, told DW.
The extension of a president's term is not unprecedented in Afghanistan. Former President Hamid Karzai faced a similar situation in 2009 when elections were held almost three months after his term had ended. At the time, too, the Supreme Court had extended the presidential term until a newly elected president could occupy the highest office.
President Ghani's supporters use this precedent as justification for the extension of his term; however, some experts argue that the circumstances in 2009 were different. "A run-off race prolonged the electoral process in 2009, resulting in the extension of the former president's term," said Waheed Farzaei of the Lawyers' Union of Afghanistan. "This time around, the elections have not been held so far, and there is no guarantee that Afghans will be able to cast their votes in September," he noted, echoing concerns about the possibility of yet another delay in holding the elections.
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What makes the situation even more complex is that the current Afghan government was established in 2014 as a result of a power-sharing deal between then candidates Ashraf Ghani and Abdullah Abdullah — an agreement brokered by former US Secretary of State John Kerry. Kerry was forced to interfere after both Ghani and Abdullah claimed victory following the vote, triggering fears of another civil war. "The establishment of the current government itself was an act against the constitution; therefore, what is happening now cannot be in line with the law," Farzaei said.
Despite increasing calls for his resignation, Ghani will most likely stay on in power and will not withdraw from the upcoming presidential race. "This will result in more people losing faith in the democratic process," Farzaei underlined.