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PP RUEHDBU RUEHPW RUEHSL
DE RUEHBUL #3485/01 3051452
ZNY CCCCC ZZH
P 011452Z NOV 09
FM AMEMBASSY KABUL
TO RUEHC/SECSTATE WASHDC PRIORITY 2686
INFO RUCNAFG/AFGHANISTAN COLLECTIVE PRIORITY

C O N F I D E N T I A L SECTION 01 OF 02 KABUL 003485 
 
SIPDIS 
 
E.O. 12958: DECL: 10/31/2019 
TAGS: PGOV PREL AF
SUBJECT: ABDULLAH'S WITHDRAWAL: PRELIMINARY LEGAL ANALYSIS 
 
Classified By: PolCounselor Annie Pforzheimer Reasons 1.4 (b), (d) 
 
¶1. (C) Summary: Following Dr. Abdullah Abdullah's November 1 
speech withdrawing from the Presidential election, there are 
legal questions that must be answered in coming days.  The 
ECC's Legal Advisor, Peter Lepsch, provided his preliminary 
analysis of the options under the Afghan Constitution and the 
2005 Electoral Law.  End Summary. 
 
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Afghan Law 
---------- 
 
¶2. (U) Article 61 of the Constitution prevents anyone but 
Abdullah and Karzai from running in the second round.  It 
states clearly that, in the second round, "only the two 
candidates with the highest number of votes will 
participate."  There does not appear to be any room for a 
legal challenge by Bashardost following Abdullah,s 
withdrawal. 
 
¶3. (U) Article 37 (2) of the 2005 Electoral Law provides for 
a candidate to withdraw "after the end of the candidate 
nomination process."  One legal argument is that the 
candidate nomination period took place before August 20. 
Another tenable legal view is that the nomination period for 
the second round run-off was the first round itself.  In 
either case, the required nomination process has passed so a 
candidate can withdraw legally.  In this event, according to 
Article 37 (2) &the votes cast in his or her favour shall 
not have any effect on the counting process.8 
 
-------------------------------- 
IEC Standard Operating Procedure 
-------------------------------- 
 
¶4. (C) The question arises about whether Abdullah can 
withdraw simply by declaring it in the media.  In the first 
round, when candidates withdrew in the media but did not 
formally withdraw with the IEC, the IEC refused to accept 
that the candidate had actually withdrawn.  They instead 
counted the votes for those candidates as &invalid8 
following the election.  This would leave the IEC procedural 
grounds to refuse to accept Dr. Abdullah,s withdrawal and 
continue with an election between both candidates, simply 
declaring all votes for Dr. Abdullah &invalid8 during the 
counting process. 
 
¶5. (U) In his press conference today Abdullah was asked 
whether or not he had withdrawn formally via the IEC.  He 
said "they can consider my withdrawal to be formal" but that 
he had severed all ties with the IEC.  Poloff then spoke with 
Dr. Abdullah,s Special Assistant, Omar Ghafoorzai, who 
confirmed that with the "lack of professionalism" at the IEC 
there is no remaining relationship between the IEC and their 
campaign and they are thus not planning any formal withdrawal 
through IEC channels.  The press reports that Dr. Najafi, 
Chief Electoral Officer of Afghanistan, said Dr. Abdullah 
cannot withdraw because the ballots are already printed and 
"the time for their withdrawal is over." 
 
¶6. (C) If the IEC eventually opts to accept Dr. Abdullah,s 
withdrawal from the election, perhaps if Dr. Abdullah's 
campaign submits something in writing to the IEC, there are 
two legally defensible tracks that can be taken under Afghan 
Law: 
 
--The "Civil Law" approach would rule that having an election 
with only one candidate would be senseless.  The remaining 
candidate in the race should be declared the winner. 
 
--The "Common Law" approach would rule that no elected 
official can hold office without actually having been 
elected.  Any official who holds an elected position must 
therefore win at least one vote from the electorate. 
 
------------------- 
Possible Next Steps 
------------------- 
 
¶7. (C) In anticipation of Dr. Abdullah's withdrawal speech, 
Lesch said that the ECC spoke with Zakria Barakzai of the IEC 
the morning of November 1 and explained to him that the IEC 
has the mandate to rule on the legal implications of 
Abdullah,s withdrawal.  The ECC left that meeting with the 
impression that Barakzai was receptive to their message of 
the need for IEC leadership.  However, later that day, after 
the speech, Barakzai told Poloff in a phone conversation that 
the IEC would decide on the morning of November 2 about two 
possible courses of action:  1) pushing the decision to the 
Supreme Court or 2) declaring Karzai the winner. 
 
¶8. (C) Comment: Afghanistan has traditionally hewn more 
 
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toward civil law but as this will be a political decision, 
there is no guarantee that they will keep to that tradition. 
It seems very likely that the case will progress to the 
Supreme Court -- which has shown itself to be politically 
flexible.  End Comment. 
EIKENBERRY