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. 
 
¶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