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Cablegate: Election Contingencies: Death of a Candidate After

VZCZCXRO6331
RR RUEHDBU RUEHPW RUEHSL
DE RUEHBUL #2428 2311436
ZNR UUUUU ZZH
R 191436Z AUG 09
FM AMEMBASSY KABUL
TO RUEHC/SECSTATE WASHDC 0924
INFO RUCNAFG/AFGHANISTAN COLLECTIVE

UNCLAS KABUL 002428

DEPARTMENT FOR S/SRAP, SCA/FO, SCA/A, EUR/RPM
STATE PASS TO AID FOR ASIA/SCAA
USFOR-A FOR POLAD

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: KDEM PGOV PREL AF
SUBJECT: ELECTION CONTINGENCIES: DEATH OF A CANDIDATE AFTER
ELECTION DAY

1. (SBU) Summary. A strict interpretation of the Afghan
constitution provides that an election must be re-run if any
candidate is killed after election day and before results are
certified. To date, the IEC has not announced a policy of what it
would do in this eventuality. End Summary.

2. (SBU) Afghan laws pertaining to death of a presidential candidate
are vaguely drafted, but are clearly intended to reduce the
political effect of assassination and to deter or narrow its
incidence, according to legal advisors at UNAMA and IFES.

3. (SBU) Article 61 of the Constitution -- repeated almost verbatim
in the Electoral Law, Chapter V, Article 18 - reads: "In case of
death of one of the candidates during the first or second round,
after the elections or prior to the announcement of the results of
elections, new elections shall be held in accordance with the
provisions of law." For this year's Presidential elections, that
would mean the period from opening of polls on August 20 to the
certification of results on September 17 -- and longer if there were
a second round. With 34 candidates at large and a forecast for more
electoral violence, a strict and literal interpretation of Article
61 of the Constitution risks providing incentive for assassination.

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4. (SBU) Chapter VIII, Article 37 of the 2005 Electoral Law ("Death
and Withdrawal of Candidates") is very confusing. The Chapter
appears to apply to all elections but the Article seems most
relevant to Provincial Council candidates. It states, "If a
candidate dies between the close of voting and before the
certification of the election results, the votes cast in his or her
favor shall be recorded. If it is determined that the deceased
candidate had been elected, then his or her seat shall be filled by
the next most voted person from the same gender." It seems clear
how this chapter of law would apply to a Provincial Council
candidate's death but it seems unclear how it was intended to guide
process in the event of a Presidential candidate's death,
particularly in light of Chapter V, Article 18.

5. (SBU) The IEC has the authority to promulgate regulations to
implement or interpret the electoral law. Absence of an official
policy interpretation on death of a presidential candidate could
force an ad-hoc decision in an emergency. Such a decision may be
controversial if it is perceived as politically motivated. For
these reasons, UNAMA, UNDP-Elect, and IFES advisors to the
Independent Electoral Commission had all urged the Commission to
decide and announce its policy on death of a Presidential candidate
along the following lines: that there would be no re-run of the
election unless the Presidential candidate who dies is a winning
candidate of round one or round two, or one of the two candidates in
a second round. At this juncture - with less than 12 hours to go
before polls open -- IEC has not made such an announcement.

EIKENBERRY

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