Legal and Civil Society Organizations: The commissioners for the next Independent Commission for Overseeing the Implementation of Constitution shall be selected through open and competitive process

26 October 2019, KABUL, Afghanistan—Legal and Civil Society Organizations, during a press conference, called for the selection of commissioners for the third term of Independent Commission for Overseeing the Implementation of Constitution (ICOIC) by the presidential palace through an open and competitive process and introducing them to Wolesi Jirga for getting vote of confidence.

The current commissioners of ICOIC were selected in 2015 as a result of a closed, non-competitive and a political process and they received a vote of confidence from the Wolesi Jirga. The working period of the commissioners will expire in the next two months.

Speaking at the press conference, Sayed Ikram Afzali, executive director of the Integrity Watch Afghanistan, said: “The commissioners of independent government commissions and agencies, in particular Independent Commission for Overseeing the Implementation of Constitution, should not be selected like the cabinet ministers as a result of political consensus, because their job is oversight over the activities of three branches of the state.” The ICOIC starts its operation in 2010 in accordance with Article 157 of the national constitution with a delay of about six years. Members of the commission in the first and second terms were selected as a result of through intergovernmental dialogue and political consensus, and they were given votes of trust from Wolesi Jirga.

Mr. Afzali further outlined the characteristics of independent agencies, stating: “Independent government agencies should have freedom in formation and dismissal of its leadership, financial independence in determining ceiling of expenditures and types of expenditures, and administrative independence in the recruitment and management of their human resources.” In addition, independent government agencies should also establish principles i.e. transparency in information dissemination, thoughtful internal accountability, and accountability to the public, and should have a trusted and honest administration.” He insisted that one of the major failures of state-building in Afghanistan was the lack of attention and support for the independence of oversight bodies within the government by the political leadership, political figures, and the international community.

Abdul Waheed Farzaee, a member of Afghanistan’s Lawyers Union, said: “Previous selection processes of commissioners for ICOIC were based on political consideration which affected the performance of the commission”, he said, adding that although in some cases the Commission has been able to make independent decisions, its leadership has usually been influenced by political leadership. “The commission’s future independence cannot be guaranteed, if the selection process of third round is the same as it was in the past,” he said.

Lailuma Nasiri, Director of the Afghanistan Justice Organization (AJO), among other speakers at the news conference, pointed to the commission’s weak role in balancing the three forces of government, saying: “The commission was expected to maintain balance between the government’s three forces and to provide necessary legal advices to the three forces in order to let the legislative, executive and judicial powers play their proper role in legal and political system of Afghanistan.”  Although the ICOIC has provided more than 300 legal consultations to the three powers, the president, and other government agencies, but the differences over the commission’s interpretation of the constitution have been politicized and its leadership could not retain its credibility with the three powers, the legal entities and civil society.

Ms Najla Raheel, the deputy director of the Afghanistan Independent Bar Association, pointed to differences between the Supreme Court and the ICOIC, saying: “The disagreement over the interpretation of the constitution has led the powers to use this situation to their advantage.” After the law of ICOIC was enacted in 2010, the Supreme Court revoked the constitutional interpretation authority from the commission in a judicial order. Although an amendment draft of the commission was worked upon at the beginning of the national unity government, it never went through the normal process.

At the end, the legal entities and the civil society presented the following recommendations to the government:

  • The presidential palace should start the selection process of commissioners for 3rd term of the ICOIC through a clear mechanism to ensure the transparency, competitive and non-political standards in the process. The government should use all the facilities for making the new officials to take the responsibility before the end of period of current commissioners, so it will prevent the important entity to be run by acting commissioners.
  • The ICOIC law which is adopted as a result of the “conference on framework of the oversight commission of the constitution” in May 2016 in the presence of Second Vice President, Chief Justice and the heads of ICOIC and German experts in Berlin, should be processed sooner. The conference on framework of the oversight commission of the constitution concluded that the interpretation of constitution is dependent on order of Supreme Court and the ICOIC has a kind of interpretation for overseeing the implementation of the constitution.
  • The three powers and the present are requested to retain the principle of independence of independent commissions including ICOIC. The initial step that the present has to take is to make the selection process of commissioners for the 3rd term, open and competitive and timely implementation of the process by the government and Wolesi Jirga and at the same time process the law of the commission before the end of the term of commissions of 2nd