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With the convening of a National Assembly, Afghanistan has entered new political terrain. Until now, it has been the President’s prerogative to initiate decrees and approve administrative actions that he and his cabinet deemed necessary and desirable for the country. By and large, these policies have been consistent with the aims of those international agencies and donors contributing to security and reconstruction in the country. An elected Assembly introduces a body that will stand between the executive branch and the forming of national policies, with as yet uncertain consequences. At best it will only slow and complicate the process of law- making and administration, while passing as evidence of democracy at work. However, this two-chamber Assembly seems especially suited to becoming a serious obstacle to attaining responsive, representative government capable of addressing the country’s legislative needs.

The newly inaugurated National Assembly can very easily become immobilized. Its members (wakils), notably in the lower house (Wolesi Jirgah), are all too likely to engage in rhetorical exercises, to use their presence in Kabul for private and parochial pursuits, and to seek confrontations with the executive branch. Very few view their election as mandating a legislative agenda and responsibilities. Election is instead their reward for individual ambition and a popularity owed to name recognition, ethnic, and other social identities and monetary incentives. The electoral system employed has further increased the probability that a fragmented, unruly Assembly will emerge. The task now is for everyone to face up to the looming difficulties for effective and orderly government and to identify ways to navigate the political hurdles posed by the Assembly that could in time force a constitutional crisis.

The Constitution creates a separation of powers but the executive is vested with an indispensable role in the legislative process. Public policies required for the country’s recovery and strengthened capacity for strong, democratic governance require the executive to help set the Assembly’s legislative agenda. In light of Afghanistan’s past experiences with democratic government and the expected diverse and fractious complexion of the Assembly, governmental paralysis is all too likely without executive leadership. Yet caution is required. Poorly conceived actions toward the Assembly could engender a breakdown in needed cooperation between the branches. A recognizable minority of members in the lower house probably welcomes confrontation. An obstructionist lower house could result were they joined by a larger number who perceive that the executive is seeking to subvert or usurp their powers. Conceivably, a frustrated President, faced with gridlock, could decide that the national interest dictates that he seeks ways to bypass the Assembly. Preventing an impasse in executive-legislative relations and fostering coordination must be priority concerns for both branches of government. In particular, the President needs the acumen and tools necessary to strike a careful balance between exercising his mandate for legislative leadership and showing sensitivity toward the National Assembly as a popularly elected institution.

The international community has made a serious commitment to strengthening the Afghan legislative process through technical support. Yet a serious disconnect may have been created between a professionalized, depoliticized bureaucracy and most of its elected Assembly membership. Donors have encouraged and supported an institutionalized legislature that conforms to rationalized, formalized codes and practices. These rules call for training a secretariat staff that values openness, accountability, and respect for rights. However, the legislative bureaucracy is expected to serve a body of individuals who appreciate few if any of these principles. Most will relate instead to informal political and social norms that find expression in closed-door discussions and shifting, contingent alliances. These behaviors reflect folkways that give great weight to social group allegiance and personal trust and are often tolerant of bribery and intimidation. Many of the supposed precedents for a democratic legislature in jirgah and shura traditions that highly value free expression and equality may in fact be dysfunctional for an effective legislative body.

Whether the distinctive approaches will inform one another, operate independently, or prove incompatible and disruptive is yet to be determined. In any event, the international community should not expect a National Assembly to emerge that for the foreseeable future bares close resemblance to its namesakes in more developed countries. Members will require time to acquire a national vision to go with their parochial preoccupations, and to appreciate their institutional roles. Afghanistan’s external benefactors are helping to buy that time. Meanwhile, the country may be fortunate just to have Assembly that serves as an arena for the county’s competitive politics but does not unduly obstruct governance or intensify existing political and social cleavages.

The initial challenge for the Assembly’s two houses will be simply “to get off the ground.” This will require that constructive attitudes emerge among the prospective leaders of the two houses, especially the heads of the self-identified political groups or parties. Even before the formal sessions begin, discussions must occur and compromises reached to enable the two houses to organize themselves. Above all, there must be reasonable assurances that most of the rules that will govern the operations of the Assembly will win at least tentative approval in the first working session. The presentation to both houses of carefully and judiciously written rules, based on broad consultation, could facilitate their acceptance.

A second potential roadblock to getting down to business is the need for the Assembly to consider ratifying decree laws and appointments that were passed during the interim period. Probably the best that can be expected is that most are approved as a package and only the most problematic or controversial decrees be held for consideration by the legislative committee charged with making the recommendations. The Assembly is likely to become more contentious over time, the longer it takes to resolve outstanding issues, the more difficult it may be to gain a majority’s approval.

The President probably will never have as much influence with the legislature than he has in the first days and weeks after it convenes. His emotional inaugural address that sought to draw the nation’s attention to the Assembly and encourage its members to responsibly exercise their powers in the public’s interest was a step in the right direction. But he will have to do much more to leverage the opportunities for building legislative momentum.

We should not underestimate the popular cynicism that exists over the composition of the lower house. Rather than beginning its institutional life with a sympathetic public, the Assembly finds itself challenged to overcome the prevailing belief that elections have succeeded in giving many of the country’s most unsavory political figures legitimacy and further opportunity to reward themselves. Delays in announcing the election results only have fueled suspicions that a large number of contests were fraudulently won.

Organization of the National Assembly

Each house of the National Assembly elects its leadership but its day-to-day management is effectively delegated to the leaders of affinity groups formed by the members. The rules provide that the prescribed organization of the chambers should compensate for the earlier decision to deny the formation of cohesive factions or parties through the election process. But a post-election attempt to encourage members to coalesce around a political affiliation will probably result in groups whose members will mostly be weakly aligned with leaders to whom they do not owe their election or loyalty. Therefore, while there are clearly factional leaders, it is debatable whether there are in fact operative factions. The selection of a president (speaker) and other administrative officers in the lower house provides a good initial indicator of difficulties that confront the Assembly in reaching a consensus among groups. The Assembly also will need to agree to members’ assignments to committees and those choices will mostly result from considerable horse-trading among group leaders.

It is difficult to predict the identity, number, size, and degree of cohesiveness of the political groups or proto-parties that will presumably organize the two houses. Nor is it apparent how stable the emerging constellation of groups will be over time. The political groups are expected to differ somewhat between the two chambers. Their number will likely vary as some groups divide and others combine. In all probability, there will be fewer groups early in the Assembly’s life as some members align with groups that seem most powerful, and more groups later as they suffer defections and splits.

At the outset here is likely to be anywhere from five to eight political groups, given the composition of those elected to the lower chamber. None of the groups are likely to reach the minimum number without attracting, by whatever means, members with at best a loose sympathy to the faction and its core interests. The most visible ideological division among Assembly’s members is the majority who identify with social and religious conservatism and the 30% or so who can be considered as progressive. The number of committed democrats in the membership is estimated at no more than 10%. Ethnicity will be a visible feature of political groups, though members with similar ethnic ties will not necessarily be united behind a single leader. However, if differences among members should sharpen into a clear Pashtun (who comprise nearly half of the membership) vs. non-Pashtun cleavage, the resulting adversarial relationship could easily cripple the Assembly and threaten the constitutional order.

The narrow victory of a leading opposition leader and ethnic Tajik as Assembly speaker, notwithstanding, a majority of the Assembly’s members are probably favorably inclined toward the President. But, this may mean little more than temporary satisfaction that Karzai’s government succeeds and the constitution survives.

Plans by the President’s rivals to create a single opposition front will probably not materialize soon, if at all. However, Karzai facing resistance from those aligned against him is not the same as having a solidarity bloc of members on a legislative program. Moreover, institutional patriotism could turn members against the President if they feel the Assembly is being slighted or attacked. Thus, as the President seeks support for his legislative agenda, how the executive relates to the Assembly’s leadership and its political groups can be critical.

The Dynamics

In the absence of a small number of reasonably cohesive blocs, whatever alliances are cobbled together post-election are bound to be fragile and fluid. The essentially artificial affinity groups mandated by Assembly rules cannot ensure members’ loyalties since. In most cases, individuals won by virtue of their own popular local standing, which sometimes required only a few thousand votes. As a consequence, there will be difficulty maintaining stable coalitions that can pass laws. Majorities will repeatedly have to be built. The political groups themselves may be composed of several factions along with would-be non-aligned members who are forced to join groups or be denied full privileges in the Assembly’s deliberations.

This puts a great burden on those who are trying to steer legislation through the Assembly. The houses may get mired in single issues and institutional disputes. An early test of the Assembly’s ability to mobilize majorities will come with the vote on rules, presidential decrees and appointments from the interim period. We should not underestimate the power of members who want to disrupt the proceedings over a larger number of members who actually want the Assembly to run smoothly

The Assembly’s leaders may be hard pressed to attract and hold quorums, which require one-half of the membership as set forth in the Constitution. The members of both houses probably will spend much of their time in Kabul lobbying in the ministries for personal gain or on behalf of constituents. If Assembly fails to accomplish much, members will find increased reason to absent themselves from its proceedings. Among other factors, the failure to achieve quorums crippled the 1965-73 experiment in parliamentary democracy.

The Executive’s Choices and Challenges

By executive preference, the Single Non-Transferable Vote (SNTV) electoral system was adopted and party voting discouraged by leaving party symbols off the ballot. The appeal of the SNTV was its simplicity for the voter. The SNTV also was expected to make it harder to elect key power brokers from across the country, most of all former mujahideen party leaders and their close associates. A more conventional system based on proportional representation — a party list — to discourage disciplined opposition blocs. It was made more unacceptable by the President’s determination not to form his own party or political movement.

The use of SNTV for province-wide, multi-seat contests was expected to produce broader-minded representatives. Instead, the ballot was far more confusing than any alternative, large numbers of major former mujahideen figures along with local militia commanders were elected, and so many candidates on a crowded ballot owed their victory to the narrowest of constituencies.

In fact, it is believed that the President and his advisors preferred the election of a largely unaffiliated membership. The calculation was that a lower house with weak, fluid allegiances would be more amenable to executive influence. Even with the formation of political groups within the Assembly, few groups were expected to be cohesive, thereby making it possible to draw off defectors who would form majorities, together with independents and a pro-government bloc. But a strategy that entails repeatedly constructing new majorities promises to be difficult for the President and his backers in the Assembly. There may not be enough incentives to go around for sustaining loyalties, and the constant need to forge new alliances on critical votes increased the chances for accusing the executive accused of interfering in the affairs of the Assembly.

It is unavoidable under the circumstances for the executive to be a major stakeholder in the lower house’s choice of speaker. In many parliamentary systems, the speaker is designated as an impartial presiding officer. He/she officially drops a party affiliation when accepting the post. In other systems, the speaker may be a partisan figure, a leader of the largest party that alone or in coalition comprises a working majority. The fact that the Afghan speaker is a visible factional leader in a highly fractious lower house is bound to add another element of volatility, especially if his rulings are transparently arbitrary or partisan. Other factional leaders who failed to gain the office of speaker may try to undermine his authority by repeatedly challenging his rulings as presiding officer. Unless the speaker is able to prevail regularly, the lower house could be tied up in procedural squabbles that heighten tensions among members and further affect the executive’s program for the Assembly.

Still, antagonisms between the branches can be mitigated and cooperation facilitated. One way is through a politically astute legislative liaison and a sensitive, well crafted, strategy. The other is to oblige the Assembly to focus on a legislative agenda rather than use legislative sessions merely for members to vent publicly their complaints and criticisms. The constitutional provision that government-initiated bills must be voted on within 30 days in the lower house and 15 days in the upper should help induce more legislating and less posturing. But, the unreasonably short period (subtracting weekends) allowed for serious committee consideration, ministerial testimony, and floor debate, may make the Assembly appear to be just a rubber stamp for the executive, something they may strongly resent.

Recommended Executive Actions:

· Create a Presidential Office of Legislative Liaison and name a Chief Officer, with a small but dedicated support staff. The head must have a number of qualifications: above all that he/she has the wide respect of members, be a non-polarizing figure, and have the full confidence of the President. The individual should have a good understanding of the power structure and the political complexion of the Assembly and be able to engage directly and easily with the members. The Liaison Office should also be supported by politically savvy individuals who can provide legal and technical skills associated with legislative processes, as well as information about the political disposition of the body and its groups.

· Arrange for the Office of Legislative Liaison to have a presence in both the presidency and the Assembly. It is imperative that those responsible for legislative liaison be available in the two chambers while they are in session, and that its chief has ready access to the President. For the Chief Officer to succeed, the President and his close advisors must make it clear that on legislative matters the chief speaks for the executive, and no other channel is open to Assembly members.

· Name a legislative liaison officer(s) in each ministry responsible for working with the President’s liaison group on legislation that falls within the purview of that ministry. The ministry’s own legislative liaison should also help prepare the minister for his/her appearances before the assembly on legislative and other matters.

· Convey the views of the executive in advance of the Assembly’s decisions to select its leaders, agree on its rules of operation, and ratify previous presidential decrees. The executive has a strong stake in each of these actions. However, in seeking to influence the outcomes, the executive must avoid the appearance that decisions involving the internal business of the assembly have originated with the executive.

· Submit a legislative package very early during the first session of the Assembly for the houses to deliberate. It is necessary to strategize how to aggregate majorities on government bills and how to prioritize legislative goals.

· Formulate the strategies necessary for mobilizing support among (a) the leadership in both houses; (b) the various political groups; and (c) the independents.

· Encourage the President to use his constitutional powers, his personal stature, and popular mandate to further his legislative agenda. This requires his continual attention to the legislative process and his willingness to take a personal hand in close coordination with his chief liaison officer in promoting government bills.

· Develop a practice of informal consultation between relevant executive officials and key group leaders prior to the submission of government bills. These meetings can serve as a means of judging support and narrowing differences on draft legislation. The executive liaison team should assume a facilitating role in these informal meetings.

· Consider a request to the Supreme Court to interpret the constitutionally created time limit on the Assembly’s deliberations and votes on government bills to refer to working session days rather than calendar days. Without such action, when obliged to vote a bill up or down, the Assembly is apt to reject bills for a lack of time and compel the executive to resubmit legislation.

· Seek international assistance for the Office of Legislative Liaison. A short tour of several countries should be arranged for a small number of individuals in order to observe how the executive-legislative relations are structured and practiced in presidential and parliamentary systems. First-hand observations should allow for an appreciation of both technical and political skills.