10.6092/issn.2531-6133/10333
Afghan party laws have consistently discouraged ethnic parties and politics. Taking an implicit approach to party nationalization, the laws have set three qualification thresholds for parties: consisting of at least 10,000 members; having offices in at least 20 provinces; and having at least 35 founders, who represent a minimum of 20 provinces. Although these thresholds have not explicitly referred to the ethnic composition of political parties, they were indeed designed to encourage broad-based parties given the regional concentration of ethnic groups. Even so, these laws have failed to encourage cross-ethnic parties or coalitions. Afghan parties have remained fragmented, personalized, and ethnic-based. In fact, no cross-ethnic party has grown in Afghanistan. Although some cross-ethnic coalitions have emerged during elections, they have failed to institutionalize as stable and cohesive political forces. This paper shows that the failure of laws to encourage cross-ethnic parties and coalitions has been due to their command-and control nature (as compared to incentive-based) and the fact that the laws have failed to set a regulatory framework for the cross-ethnic coalitions that have emerged, particularly during the presidential elections.
application/pdf
2531-6133
10333
2
en
M. Bashir Mobasher
University of Bologna Law Review
Elections
Party Laws and Party Nationalization: a Critique of Afghan Political Party Laws
Text.Serial.Journal
https://bolognalawreview.unibo.it/
4
Articles & Essays
2019-12-31
2020-01-03
2019-08-23
2020-03-17
283-324
UBLR
M. Bashir Mobasher
2019/12/31
10.6092/issn.2531-6133/10333
283
American University of Afghanistan
2531-6133
2
Elections
en
324
Party Laws and Party Nationalization: a Critique of Afghan Political Party Laws
https://bolognalawreview.unibo.it/article/download/10333/10371
4
 ARTICLES & ESSAYS                                                       https://doi.org/10.6092/issn.2531-6133/10333




                  Party Laws and Party Nationalization:
                 a Critique of Afghan Political Party Laws

                                           M. BASHIR MOBASHER †


TABLE   OF CONTENTS: 1. Introduction; 2. The Legal Approach to Party Development; 2.1. What’s
Wrong with Ethnic Parties?; 2.2. Why an Implicit Approach to Party Nationalization?; 3. A New
Perspective on the Flawed Party Laws; 3.1. Lack of Interest in Party Development; 3.2. Command and
Control Rules; 3.3. Laws of Not the Emerging Coalitions; 4. Reforming Afghan Party Laws; 4.1.
Recognizing and Promoting the Emerging Coalitions; 4.2. Public Funding of Cross-ethnic Coalitions
and Parties; 5. Other Measures; 5.1. WJ Rules of Procedure and Parliamentary Parties and Coalitions;
5.2. Anti-Switching Provisions; 6. Conclusion.


ABSTRACT: Afghan party laws have consistently discouraged ethnic parties and politics.
Taking an implicit approach to party nationalization, the laws have set three qualiﬁcation
thresholds for parties: consisting of at least 10,000 members; having offices in at least 20
provinces; and having at least 35 founders, who represent a minimum of 20 provinces.
Although these thresholds have not explicitly referred to the ethnic composition of
political parties, they were indeed designed to encourage broad-based parties given the
regional concentration of ethnic groups. Even so, these laws have failed to encourage
cross-ethnic parties or coalitions.         Afghan parties have remained fragmented,
personalized, and ethnic-based. In fact, no cross-ethnic party has grown in Afghanistan.
Although some cross-ethnic coalitions have emerged during elections, they have failed to
institutionalize as stable and cohesive political forces. This paper shows that the failure of
laws to encourage cross-ethnic parties and coalitions has been due to their
command-and control nature (as compared to incentive-based) and the fact that the laws
have failed to set a regulatory framework for the cross-ethnic coalitions that have
emerged, particularly during the presidential elections.

KEYWORDS: Party Laws; Party Nationalization; Constitution; Institutionalization; Elections




                                       UNIVERSITY OF BOLOGNA LAW REVIEW

                                                    ISSN 2531-6133

                                                    [VOL.4:2 2019]

          This article is released under the terms of Creative Commons Attribution 4.0 International License (CC-BY)



                                                           283
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10333



          1. INTRODUCTION

Afghan party laws and regulations have consistently discouraged ethnic
parties and politics. By prohibiting parties from forming or functioning
on the basis of ethnicity, region, language, or religious sectarianism,
Article 35 of the Constitution sets a principal framework towards
nationalization of parties.1 Subsequently, Article 6 of the Political Party
Law provides that, “political parties shall not incite to ethnic, racial,
religious      or   regional     discrimination”.2              To    further       encourage
nationalization of parties, the Political Party Law of Afghanistan has set
some thresholds, compelling parties to expand their membership,
leadership positions and regional offices across over twenty provinces.3
Although none of the thresholds have explicitly referred to the ethnic
composition of political parties, they were indeed designed to encourage
broad-based parties given the regional concentration of ethnic groups.4
          Despite these laws and efforts, however, the so-called “parties”
have       remained     fragmented,         personalized        and      ethnic-based           in
Afghanistan.5 In fact, no inclusive and programmatic party has grown out
of the existing ﬂuid party system.6                Most parties have been one-man
shows, functioning as the property of their leaders and serving only their
interests.7      These parties have continued to remain organizationally
unstable, politically incohesive, programmatically indistinguishable, and
†
     M. Bashir Mobasher, LLM, Ph.D., is Assistant Professor at the Department of
    Political Science of the American University of Afghanistan (Afghanistan). Contacts:
    bmobasher@auaf.edu.af; mo-bashir@hotmail.com.
1
  QāNOON-I ASSāSI-YE JAMHūRI-YE ISLāMI-YE AFGHANISTAN [CONSTITUTION OF THE ISLAMIC
  REPUBLIC OF AFGHANISTAN], 2004, art. 35. hereinafter CONSTITUTION.
2
  See QANUN-I-AHZAB SIASSI [POLITICAL PARTY LAW], 2003, art. 5; QANUN-I-AHZAB SIASSI
  [POLITICAL PARTY LAW], 2009, art. 6 hereinafter POLITICAL PARTY LAW.
3
  See POLITICAL PARTY LAW, art. 9 (amended, 2012).
4
  See Id.
5
  See NOAH COBURN & ANNA LARSON, DERAILING DEMOCRACY IN AFGHANISTAN: ELECTIONS IN AN
  UNSTABLE POLITICAL LANDSCAPE 73 (2013).
6
  See Mohammad Shafaq Khawati, Qawmcracy Wa Qabila Salari [Ethnocracy and Tribalism],
  in DEMOCRACY AFGHANI: FURSAT HA WA CHALISH HA [AFGHAN DEMOCRACY: CHALLENGES AND
  OPPORTUNITIES] 27 (Mohammad Nabi Ahmadi & Majid Ismaelzada eds., 2014).
7
  See S. Yaqub Ibrahimi, Political Parties and Political Development in Afghanistan 10 (Working
  Paper, 2014), http://www.atlantic-community.org/documents/10180/dd2703aa-ff86-
  4553-a47c-369dcdfefcaf.



                                             284
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10333



internally undemocratic.8 Since they have failed to constitute parties in
the conventional sense,9 some scholars have referred to them as
proto-parties10 and other as factions,11 shabaka-hai siyasi (political
networks), jiryanat siyasi (political currents),12 or grohak-ha (cliques).13
         This article examines some important features of Afghan party
laws to unravel their failures in party nationalization. The ﬁrst section
begins with a conventional typological analysis locating Afghan’s
regulation of party nationalization. Then, it discusses why Afghan party
laws would ban ethnic parties and why they would take an implicit
approach to party nationalization. The second section deals with whether
the laws have been able to transform and nationalize parties in
Afghanistan.        Revealing that they have not, it introduces the main
question: why have these laws failed to encourage cross-ethnic parties?
To answer this question, it examines the scale and the content of party
related regulations and whether they truly value development of parties
and coalitions.        The last section of this article examines alternative
regulations and designs that would help institutionalize cross-ethnic
coalitions and parties.
         This article grew out of a single outcome case study as it compares
Afghan party laws with those of other divided societies. These supporting
cases are Bolivia, Burundi, Ghana, Indonesia, Kenya, Malawi, Nigeria,
8
   See Thomas Rutting, Islamists, Leftists – and a Void in the Center: Afghanistan’s Political
   Parties and Where They Come From (1902-2006), AFGHANISTAN ANALYSTS NETWORK (Jan. 1,
   2006) https://www.afghanistan-analysts.org/publication/other-publications/islamists
   -leftists-and-a-void-in-the-center-afghanistans-political-parties-and-where-they-
   come-from-1902-2006-2/.
 9
   See Anna Larson, Afghanistan’s New Democratic Parties:                A Means to Organize
   Democratization?, AFG. RESEARCH AND EVALUATION UNIT, (Mar. 2009), http://www.refworld
   .org/pdﬁd/49c254a02.pdf. (“They do not resemble parties in established and/or Western
   democracies, in that they are largely based on the ethnic ex-military factions that fought
   in the civil war.”).
10
   See id.      at 1; See ANA LARSON, Anna Larson, The Wolesi Jirga in Flux, 2010:
   Elections and Instability, Afghanistan Research and Evaluation Unit, 5 (2010),
   http://www.operationspaix.net/DATA/DOCUMENT/4581 v The_Wolesi_Jirga_in_Flux_
   2010__Elections_and_Instability_I.pdf.
11
   See Antonio Giustozzi, The Ethnicisation of An Afghan Faction: Junbesh-I-Milli From Its
   Origins to the Presidential Elections (Crisis States Research Center, Working Paper No. 67,
   Sept. 2005), http://eprints.lse.ac.uk/13315/1/WP67.pdf.
12
   See RUTTING, supra note 8, at 1.
13
   See Khawati, supra note 6, at 27.



                                             285
                                                  University of Bologna Law Review
                                                                      [Vol.4:2 2019]
                                                     https://doi.org/10.6092/issn.2531-6133/10333



 Philippines, Sierra Leone, Sri Lanka, and Tanzania. Although political
 laws are undergoing changes in most of these countries, their innovative
 approaches and designs offer more exemplars/material to teach their
 counterpart societies than the centuries old laws and institutions in
 advanced democracies. Rules such as anti-switching provisions, ethnic
 party banning, merger provisions, party qualiﬁcation thresholds, and
 party nomination thresholds are either the product of innovations of
 democratizing societies or are more prevalent in these countries.14
         All countries in Table 1 are multi-ethnic societies. The scale of
 ethnic fractionalization ranges from 0.161 to 0.953 in these countries,
 with Afghanistan sitting almost in the middle.15 Ethnic distributions in
 Ghana, Malawi, Nigeria, Indonesia and Sierra Leone are particularly
 similar to that of Afghanistan: they are all countries of minorities (see
 Table 1). Additionally, these countries are democratizing societies with
 mostly undeveloped party systems. Freedom House has categorized most
 of these countries, including Afghanistan, as partly free or not free.16
 Ghana is the only country that is marked as a free country by Freedom
 House.17     Afghanistan’s score of democratization is better only than
 Burundi;18 notably, its score of democratization has worsened from 5 to 6
 between 2007 to 2017. It only improved to 5.5 since 2018.19 Based on their
 recent elections, most countries in the table have fewer effective parties
 and coalitions than Afghanistan. The countries with the fewest number of
 parties are Ghana and Sierra Leone, each having two prominent parties.
14
   Infra note 76; infra note 77; infra note 156.
15
   See James D. Fearon, Ethnic and Cultural Diversity by Country, 8 J. E. GROWTH 195 (2003).
16
   Populists and Autocrats: The Dual Threat to Global Democracy, Freedom House (2017),
   https://freedomhouse.org/report/freedom-world/freedom-world-2017.
17
   Ghana, Freedom House, https://freedomhouse.org/report/freedom-world/2017/ghana.
18
   See Burundi, Freedom House, https://freedomhouse.org/report/freedom-world/2017/bur
   undi.
19
   See Afghanistan, Freedom House, https://freedomhouse.org/report/freedom-world/2017
   /afghanistan.




                                            286
                                                                                              University of Bologna Law Review
                                                                                                                  [Vol.4:2 2019]
                                                                                                    https://doi.org/10.6092/issn.2531-6133/10333


                                        Ethnic Distribution                                     Rate of Democratization                    Parties & Coalitions
     Country
                Largest   2nd Largest     3rd Largest 4th Largest    Fractionaliz.   Categorization Score in 2018 Score in 2008   Elections       Parties     Coalitions
 Tanzania          16     less than 5     less than 5  less than 5      0.953        Partly Free            4           3.5         2015             5            /
 Kenya             22          14              13           12          0.852        Partly Free            4           3.5         2013      20 (in 3 Coal.)     3
 Ghana           47.5        16.6             13.9          7.4         0.846        Free                  1.5          1.5         2016             2            /
 Malawi           35.1       18.9             13.1          12          0.829        Partly Free            3            4          2014             6            /
 Nigeria           29          21              18           10          0.801        Partly Free            4            4          2015             4            1
 Indonesia       40.1         15.5             3.7          3.6         0.766        Partly Free            3           2.5         2014      10 (in 2 Coal.)     2
 Sierra Leone      35          31               8            5          0.764        Partly Free            3            3          2012             2            /
 Afghanistan    40-44       25-27            9.-12        6.-9          0.751        Not Free              5.5           5        2010,2014 23 (in 5 Coal.)       5
 Bolivia           68          20               5                       0.743        Partly Free            3            3          2014             2            1
 Sri-Lanka       74.9         11.2            9.2           4.2         0.428        Partly Free           3.5           4          2015             3            3
 Burundi           85          14                                       0.328        Not Free              6.5          4.5         2015             2            1
 Philippines     28.1         13.1            9           7.6           0.161        Partly Free            3           3.5         2016            16            1



 Table 1: Afghanistan here is compared with eleven other divided societies. The
 comparison includes ethnic distribution, democratization scale, and number of
 parties and coalitions.20


 As Table 1 indicates, Afghanistan is a divided society with at least four
 large ethnic groups, namely Pashtuns, Tajiks, Hazaras and Uzbeks, as
 well as numerous smaller groups. The population of ethnic groups ranges
 from below one percent to over forty percent, although every ethnic group
 tends to overstate its population.21 Each ethnic group is likely to have at
 least one political faction or party; even so, most studies concur that
 parties tend to represent the interests of a few ethno-political elites
 rather than concerns of the ethnic masses.22                                                                            While using parties
 repeatedly to mobilize communities for political gains, elites have
 remained hesitant to expand parties beyond their control primarily to
 avoid losing their leverage.23 In addition to these elites, state policies,
 electoral systems, and historical misdeeds of parties have thwarted party
 development as well. However, exploring the role of these factors in party
20
   World        Factbook:          Afghanistan,       CENTRAL       INTELLIGENCE    AGENCY,
 https://www.cia.gov/library/publications/the-world-factbook/geos/af.html;               see
 also Freedom in World, FREEDOM HOUSE, https://freedomhouse.org/report/freedom-
 world/freedom-world-2017; Fearon, supra note 15, at 195-222.
21
   No scientiﬁc census of ethnic populations in Afghanistan has been conducted yet. Instead,
   numerous estimations of ethnic demographics have been produced by different domestic
   and international organizations which are almost all disputed by different groups.
   The most cited estimation is the one by C.I.A. sheet. Some international organizations
   including the U.N. Agencies, N.A.T.O., and the European Union have relied on C.I.A.
   Factbook for their analysis of Afghan society. Between 2001 and 2016, C.I.A. Factbook
   estimated Pashtuns between 40 to 44% of the population, Tajiks between 25 to 27%,
   Hazaras between 9 to 10%, and Uzbeks between 6 to 9%. Since 2016, the C.I.A. Factbook
   stopped releasing estimations on ethnic distribution in Afghanistan perhaps because of
   the doubt in such numbers. See World Factbook: Afghanistan, Central Intelligence Agency,
   https://www.cia.gov/library/publications/theworldfactbook/geos/print/country/country
   pdf_af.
22
   See, e.g., IBRAHIMI supra note 7; Larson supra note 9; RUTTING supra note 8.
23
   See IBRAHIMI, supra note 7.




                                                                                     287
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10333



 development is beyond the scope of this article which intends to examine
 party laws only.
         In literature, party laws are deﬁned either in a narrow sense or in a
 general sense. In the narrow sense, as Richard Katz deﬁnes it, “Party Law
 refers to statutes regulating political parties and codiﬁed under a
 comparably descriptive title Political Party Law” or Qanun-i-Ahzab Siassi
 in the case of Afghanistan.24 This chapter uses the term Political Party
 Law, with capitals, to refer to Qanun-i-Ahzab Siassi. In a more general
 sense, party laws consist of any formal rules and regulations about the
 structure, activities, and ﬁnances of political parties and coalitions.25 In
 this way, party laws in Afghanistan include party related provisions in the
 Constitution, Political Party Law, electoral laws, and Parliamentary Rules
 of Procedure. Engaging with all these bodies of party laws, this article
 examines their inﬂuence on party transformation and nationalization in
 Afghanistan.




         2. THE LEGAL APPROACH TO PARTY DEVELOPMENT IN AFGHANISTAN

 Typically, making a decision about an appropriate party regulation is a
 technical matter that comes after the lawmakers decide what kind of
 parties best suit their society.26             Taking this into account, different
 countries have adopted different types of party laws, some permissive and
 some very controlling. Explaining these different regulatory approaches,
 Kenneth Janda distinguishes ﬁve different types of party laws:
24
   Richard S. Katz, Democracy and the Legal Regulation of Political Parties, 2 (USAID Conference
   on Changes in Political Parties, Conference Paper, Oct. 1, 2004), https://www.scribd.com
   /document/190180368/Democracy-and-the-Legal-Regulation-of-Political-Parties.
25
   See id.; see also Abeje, infra note 187, at 315.
26
   See Matthijs Bogaards, Strategies of Political Party Regulation, in POLITICAL PARTIES IN
   CONFLICT-PRONE SOCIETIES: REGULATION, ENGINEERING AND DEMOCRATIC DEVELOPMENT 48,
   48-9 (Benjamin Reilly & Per Nordlund, eds., 2008).




                                              288
                                               University of Bologna Law Review
                                                                   [Vol.4:2 2019]
                                                   https://doi.org/10.6092/issn.2531-6133/10333



 In general, nations that proscribe parties by law forbid them from operating
 entirely; nations that permit parties allow them to operate freely; nations
 that promote parties [adopt laws to] actively support them; nations that
 protect parties favor certain ones over others; and nations that prescribe for
 parties seek [a legal framework] to mold them to ﬁt an ideal.27
        Matthias Bogaard is another prominent scholar who, by focusing
 on the regulation of ethno-religious parties, distinguishes three types of
 party regulations:28 (a) articulating regulations that by default allow
 translation of ethnic groups into ethnic parties; (b) blocking regulations
 that forbid the formation of ethnic parties;                 and, (c) aggregating
 regulations that require and encourage cross-ethnic parties.29 Bogaard
 posits that a party law may combine a mix of these rules. Both Janda’s and
 Bogaard’s typologies have been popularly used by numerous scholars in
 different articles and books.30
        These typologies are very helpful for a better understanding of how
 parties and party systems are perceived by the public and government and
 how they are regulated. For example, using Janda’s typology, Afghan
 party laws fall within the prescriptive framework since the laws require
 transformation and nationalization of parties.                 Based on Bogaard’s
 typology, Afghan party laws have incorporated both blocking and
 aggregating regulations: the blocking regulations include Article 35 of the
 Constitution, Article 6 of the Political Party Law, and rule 13 of the Wolesi
 Jirga (House of Representatives, hereinafter W.J.) Rules of Procedure,
 which explicitly prevent ethnic parties.31          The aggregating regulations
 include Article 9 of the Political Party Law and its amendments that
27
   KENNETH JANDA, THE NAT’L DEMOCRATIC INST. FOR INT’L AFFAIRS, POLITICAL PARTIES AND
   DEMOCRACY IN THEORETICAL AND PRACTICAL PERSPECTIVES: ADOPTING PARTY LAW 8 (2005).
28
   Bogaards, supra note 26, at 49.
29
   Id., at 59.
30
   See, e.g., INGRID VAN BIEZEN ET AL., POLITICAL PARTIES IN CONFLICT-PRONE SOCIETIES:
   REGULATION, ENGINEERING AND DEMOCRATIC DEVELOPMENT (Benjamin Reilly & Per Nordlund,
   eds., 2008); see also KATZ, supra note 24, at 2.
31
   CONSTITUTION art. 35; QANUN-I-AHZAB SIASSI [POLITICAL PARTY LAW], 2003, art. 5;
   QANUN-I-AHZAB SIASSI [POLITICAL PARTY LAW], 2009, art. 6; RULES OF PROCEDURES, 2016,
   Rule 13.




                                         289
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10333



 require structural and functional presence of parties across twenty
 provinces that naturally inhibit more than one ethnic groups.32
         Although Janda’s and Bogaard’s typologies highlight some
 important distinctions between different types of party regulations, they
 do not explain why a country adopts any of the regulatory approaches.
 Additionally, they do not differentiate between explicit and implicit
 approaches to party nationalization; neither do they explain why party
 laws often fail to nationalize parties when they are intended to do so. This
 paper is intended to tackle these questions one by one in the particular
 case of Afghanistan.



     2.1. WHAT IS WRONG WITH ETHNIC PARTIES?

 A careful analysis of Afghanistan’s case reveals that despite the
 prominence of ethnic affiliations in electoral practices and party politics,
 the    political    ideals     value     the    nationalization          of    parties       and
 de-ethnicization of politics in general.                 This gap between political
 practices and political ideals is well documented in the ﬁndings of a
 survey that I conducted for another research project from over 2900
 respondents from all thirty-four provinces.33
         Based on the survey, only 18% of respondents had a sympathetic
 view of the existing ethnic parties.34 In contrast, 38% of respondents
 favored the institutionalization of the emerging cross-ethnic coalitions.35
 The other 45% thought that Afghanistan would be better off without
 parties and coalitions.36          The primary reason for the latter group of
32
   Id., art. 9 (2, amended, 2012).
33
   M. Bashir Mobasher, Centrifugal Practices & Centripetal Ideals: An Overview of Afghan
   Political Practices, Ideals and Institutions, 2019, International Conference on Global Risk,
   Security and Ethnicity (unpublished conference paper). With the help of academics from
   several universities including American University of Afghanistan, Kabul University and
   Alberoni University, I conducted this survey between August of 2016 and February of 2019.
34
   Id.
35
   Id.
36
   Id.




                                             290
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10333



 respondents was the involvement of ethnic parties in the civil wars and
 the clientelistic politics of both parties and coalitions.37
 Since banning parties and coalitions would be counterproductive for a
 democratizing society, the option of banning was replaced with “keeping
 both political organizations” in a later question in the questionnaire.
 With this change, the number of those who favored cross-ethnic parties
 increased dramatically to 57%. Again, only 21% of respondents favored
 an ethnic party system and the remaining 23% were open to both kinds of
 parties but personally preferred cross-ethnic parties mostly.38                            With
 relatively small variations, these numbers reﬂect respondents from all
 ethnic groups, as illustrated in Table 1. In other words, a concurrent
 majority of ethnic groups prefer party nationalization over ethnic parties.
 Although pro-coalition majorities of Uzbeks and other groups are less
 than 50%, they are still twice as much as those who prefer ethnic parties.




 Table 2: Responses of subjects about their preferred party system for
 Afghanistan.39

37
   Id.
38
   Id.
39
   The data is based on a survey from 2900 respondents from all 34 provinces, used for a
 different research project entitled Centrifugal Practices & Centripetal Ideals: An Overview of
 Afghan Political Practices, Ideals and Institutions.




                                             291
                                                  University of Bologna Law Review
                                                                      [Vol.4:2 2019]
                                                     https://doi.org/10.6092/issn.2531-6133/10333



 The urge for party nationalization was ironically conﬁrmed by the
 ﬁndings of a series of semi-structured interviews, which I conducted with
 over forty party and non-party elites.40 Of the twenty-nine interviewees,
 who were asked about their ideal party system, twenty-eight favored
 cross-ethnic parties. Interestingly, the interviewees included seventeen
 party elites, from which the leader of only one party suggested that ethnic
 parties could function democratically as well.41                Out of the seventeen
 parties’ representatives who were interviewed, only three admitted that
 their parties were ethnic or mostly ethnic. The other fourteen claimed
 that they represented different groups and gender; at the same time, most
 parties would also suggest that no other party was cross-ethnic in
 Afghanistan. Not surprisingly, similar claims by party representatives
 were recorded by other researchers as well42 while most studies on parties
 concur that ﬁnding a truly inclusive party is barely possible in
 Afghanistan.43
         The survey and interview ﬁndings demonstrate that popular
 political ideals favor party nationalization pressuring even ethnic parties
 to claim that they are cross-ethnic. Reﬂecting these centripetal ideals,
 Afghan party laws challenge parties to nationalize. Afghan party laws not
 only indicate a centripetal approach but also a de-ethnicizing approach to
 party nationalization, which will be discussed in the following section.



     2.2. WHY AN IMPLICIT APPROACH TO PARTY NATIONALIZATION?

 If party laws of Afghanistan are to be appreciated for one thing, it is their
 implicit approach to party nationalization as they were meant to encourage
40
   Supra note 30. (The interview included leaders orspokesperson of parties (17); leaders or
   spokesperson of coalitions (10); members of The Independent Commission for Overseeing
   the Implementation of the Constitution (2); board members and advisors of Electoral
   Commissions (6); MP’s from the Wolesi Jirga (4); and two officials from the M.o.J., which
   registers parties (2).
41
   Based on an interview with one of the party leaders in 2016 (on ﬁle with author).
42
   See, e.g., NATIONAL DEMOCRATIC INSTITUTE (NDI), POLITICAL PARTIES IN AFGHANISTAN,
   16 (2011), https://www.ndi.org/sites/default/ﬁles/Afghanistan-political-parties-july-
   2011.pdf.
43
   See, e.g., Id.; IBRAHIMI supra note 7; RUTTING supra note 8; infra note 50.


                                            292
                                                  University of Bologna Law Review
                                                                      [Vol.4:2 2019]
                                                     https://doi.org/10.6092/issn.2531-6133/10333



 cross-ethnic parties without setting an ethnic-based threshold to do so.
 This implicit approach to party nationalization sets a de-ethnicizing legal
 framework as opposed to ethnicizing or indifferent laws.
 De-ethnicizing party laws encourage cross-ethnic parties without
 addressing their ethnic distribution in explicit terms. Afghan party laws
 have used three non-ethnic thresholds to implicitly encourage ethnic
 pluralism of parties:         the threshold of membership requires that a
 registering party must have at least 10,000 members; the threshold of
 founders requires that a party must have a minimum of thirty-ﬁve
 founders from at least twenty provinces;44 ﬁnally, the threshold of party
 offices requires a registering party to open offices in at least twenty
 provinces within a year from registration.45                The thresholds of party
 offices and founders were speciﬁcally intended to have an aggregating
 effect since ethnic groups are regionally concentrated in Afghanistan.
 Since no single ethnic group has a substantial population in at least
 twenty provinces, a political party has to draw support from different
 ethnic groups to satisfy these thresholds. Therefore, while the threshold
 of party founders implicitly requires ethnic representation at the highest
 level of political parties, the office threshold commands parties’ presence
 in more than one ethnic constituency.
         This de-ethnicizing approach to party nationalization has two
 advantages. First, at least on the surface, the laws have taken away the
 political prominence of the ethnic divide. This is important because the
 decision whether the thresholds explicitly or implicitly address ethnic
 composition of parties has long-term social and psychological impacts.46
 While encouraging cross-ethnic parties, the thresholds are intended to
 minimize the role of ethnicity in politics in the long run.                      The other
 advantage of a de-ethnicizing approach is its recognition of alternative
44
   See MUQARERA TARZ TASIS WA SABT AHZAB SIASSI [THE REGULATION ON THE PROCEDURES OF
   FORMATION Registration of Political Parties] , 2010, art. 9.
45
   See MUQARERA TARZ TASIS WA SABT AHZAB SIASSI [THE REGULATION ON THE PROCEDURES OF
   FORMATION Registration of Political Parties] , 2010, art. 9; art. 9 (amended 2012).
46
   See Nicholas O. Stephanopoulos, Our Electoral Exceptionalism, 80 U. CHI. L. REV. 769, 842
   (2013).



                                            293
                                                 University of Bologna Law Review
                                                                     [Vol.4:2 2019]
                                                     https://doi.org/10.6092/issn.2531-6133/10333



 identities to challenge the dominance of ethnic identity.                       Relying on
 provincial expansion of parties,              the thresholds bring provincial
 affiliations into the political equation. In fact, by recognizing provincial
 affiliations, but not ethnic ones, the party laws leave ethnic identity in a
 comparatively disadvantaged position in the long-run. Given that many
 provinces cut across ethnic groups, party laws are likely to reduce
 inter-ethnic divide and intra-ethnic cohesion.47
         Contrary to a de-ethnicizing law, an ethnicizing party law explicitly
 codiﬁes the role of ethnicity in party politics. Ethnicizing party laws may
 be exempliﬁed by the Kenyan and Burundi’s party laws.                          Article 7 of
 Kenya’s Political Party Act provides that “the composition of [the party’s]
 governing body reﬂects regional and ethnic diversity, gender balance and
 representation of minorities and marginalized groups”.48 Article 168 of
 Burundi’s Constitution states that during elections “Of three candidates
 registered together on a [party] list, only two may belong to the same
 ethnic group . . .”.49 Article 31 of Burundi’s Political Party Act provides
 that the national leadership of a party may not have more than
 three-quarters of its leadership members belonging to a single ethnicity
 or gender.50 These rules are referred to as ethnicizing laws because while
 encouraging the nationalization of parties, these laws emphasize the
 ethnic affiliation of party leaders and members. Such party regulations
 openly and permanently bring ethnic affiliations into the political
 equation.51       More importantly, these rules “lock in” a political
47
   See id., at 239.
48
   Kenya: POLITICAL PARTIES ACT (2007), art. 7, http://kenyalaw.org/kl/ﬁleadmin/pdfdownload
   s/RepealedStatutes/PoliticalPartiesActCap7A.pdf.
49
   LA CONSTITUTION DU BURUNDI [THE CONSTITUTION OF BURUNDI], 2005, art.                  168,
   https://www.constituteproject.org/constitution/Burundi_2005.pdf.
50
   LOI     PORTANT     ORGANISATION   ET     FONCTIONNEMENT       DES   PARTIS    POLITIQUES
   [LAW      ON     ORGANIZATION  AND    OPERATION      OF    POLITICAL   PARTIES],    2003,
   http://www.grandslacs.net/doc/3964.pdf.
51
   See Stephanopoulos, supra note 46, at 842 (“such techniques [explicit rules] are often
   controversial because they openly take race into account and deviate from the ideal of the
   color-blind state.”); Anika Becher and Mathias Basedau, Promoting Peace and Democracy
   Through Party Regulation? Ethnic Party Bans in Africa, 8 (Working Paper, GIGA Research
   Programme: Violence, Power and Security, 2008).




                                           294
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10333



 environment, where civil and political actors are conscious of ethnicity
 and ethnic affiliation is politically salient.
           Although it explicitly refers to ethnicity, Article 35 of the Afghan
 Constitution does not institutionalize ethnic politics because it is a
 blocking provision. A blocking regulation basically denies ethnicity a role
 in party politics.        In other words, even though Article 35 and similar
 blocking provisions explicitly refer to ethnicity, their references do not
 imply recognition of ethnicity in party politics, but rather disallow it.
 Therefore, such blocking provisions are not ethnicizing laws.
           Indifferent legal frameworks neither codify nor acknowledge the
 political role of ethnicity. Designing such laws is problematic in divided
 societies, where ethnic politics and ethnic tensions are real and need to be
 addressed by laws and institutions. The fact that Afghanistan’s previous
 Political Party Law required only 700 members for a party to qualify and
 nothing else indicated that the law had adopted an indifferent approach to
 ethnic politics in party development.52 The result was the registration of
 an overwhelming number of ethnic parties.
           In    light   of   this    comparison,       arguably        the     adoption        of
 de-ethnicizing party laws was necessary to mitigate the role of ethnicity
 in politics in the long run. But the question remains as to whether these
 laws have been successful in encouraging cross-ethnic parties in
 Afghanistan. The following section reveals a negative answer.




           3. A NEW PERSPECTIVE ON THE FLAWED PARTY LAWS

 Afghanistan’s 2009 Political Party Law and its amendments were slightly
 successful in reducing party fragmentation. This was mainly because the
 new law had a retroactive effect, requiring the already registered parties to
52
     See QANUN-I-AHZAB SIASSI [POLITICAL PARTY LAW], 2003, art. 9.




                                             295
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10333



 meet the new thresholds. Since many parties were far from meeting the
 thresholds, almost half of them failed to re-register under the new law.53
 Indeed, the new law was adopted to remedy the negative effects of the
 previous law (2003), under which any party with over 700 members had
 been able to register in the Ministry of Justice (hereinafter M.o.J.).54 The
 low threshold had led to the fragmentation of political parties and the
 registration of over 100 parties by 2009.55 By imposing an obligation on
 the parties to re-register, the new law reduced their number to just over
 50 parties.56 In 2016, their number was further reduced temporarily to
 around 40 when the M.o.J. suspended 11 parties and issued warnings to 20
 others for failing to meet the thresholds.57 Even so, the impact of the new
 law remained limited to new and weak parties.
         Many parties criticized the law and its sporadic enforcement by the
 Registrar Office, an office of the M.o.J that registers political parties in
 Afghanistan. Some questioned the constitutionality of the law for having
 retroactive effect on already-registered parties.58 Many criticized that the
 laws were enforced only on new and weak parties while old Jihadi
 parties59 continued to exist even though they had failed to meet the
 registration threshold.60 These criticisms were warranted since several
 studies and reports indicated that indeed none of the political parties had
53
   See Anna Larson, Political Parties in Afghanistan, UNITED STATES SPECIAL REPORT 362 (Mar.,
   2015), http://www.usip.org/sites/default/ﬁles/SR362-Political-Parties-in-Afghanistan.
   http://www.usip.org/sites/default/ﬁles/SR362-Political-Parties-in-Afghanistan.pdf
54
   See QANUN-I-AHZAB SIASSI [POLITICAL PARTY LAW], 2003, art. 9.
55
   Fehrest-i-Kamel Ahzab Siassi Afghanistan [The Complete List of Political Parties of
   Afghanistan], BBC (Jun.12, 2009), http://www.bbc.com/persian/afghanistan/2009/07/090
   718_a-af-election-political-parties.shtml.
56
   Interestingly, the number of registered parties is different from English version (ﬁfty
   parties) to Dari and Pashtu lists of parties (ﬁfty-seven parties) in the M.o.J. Website. Cf.
   MINISTRY OF JUSTICE [Parties’ List in English] (May 4, 2016); MINISTRY OF JUSTICE [Parties’
   List in Pashtu] (May 4, 2016); MINISTRY OF JUSTICE [Parties’ List in Persian] (May 4, 2016).
57
   Mukhtar Wafayee, Ministry of Justice: 11 Suspensions and 20 Alerts, HASHT SUBH NEWS (Feb.
   27, 2016), [12/8/1394] http://www.elonat.com/jantari_converter.php.
58
   Interview with elites of three political parties in 2016 (on ﬁle with author).
59
   Jihadi parties are the parties that declared Jihad and engaged in war against Soviet
   backed regimes in Afghanistan between 1979 to 1992. According to Islamic scholars, one
   interpretation of Jihad is holy war.
60
   Interview with elites of ﬁve political parties in 2016 (on ﬁle with author).




                                             296
                                                                          University of Bologna Law Review
                                                                                              [Vol.4:2 2019]
                                                                               https://doi.org/10.6092/issn.2531-6133/10333



 perfectly satisﬁed all the qualiﬁcation thresholds.61 In fact, in a 2016
 interview, the head of the Registrar Office conﬁrmed that most registered
 parties had not met the required thresholds.62
               The failure of party nationalization should be observable by the
 lack of electoral support across provinces.63 However, since most party
 members ran as independents in Afghanistan, documenting electoral
 support of parties is highly unlikely.64 An alternative way of assessing
 party nationalization is to look at the ethnic distribution of their
 representatives in the W.J.. Unlike a party’s electoral support across the
 nation, parties’ members can be easily veriﬁed in a given legislature.
 Additionally, an ethnic party may be able to recruit or even attract
 supporters from other groups but it may not have higher ranking, elected
 officials from other groups.                              Table 3 illustrates ethnic distribution of
 parties’ representatives in the W.J..
                                       Ethnic Representation of Parties in the Parliament (2010-2017)
                Title (Persian)                       Title (English)               Seats # Pashtuns Tajiks   Hazaras   Uzbeks   Arab
     Hezb-i-Islami Afghanistan             Islamic Party of Afghanistan               24       16      4                  1+1     2
     Hezb-i-Jamiat Islami                  Islamic People’s Party Of Afghanistan      18               17                          1
     Hezb-i-Wahdat Islami Mardom Afg.      Islamic Unity Party of Afghan People       12                        12
     Hezb-i-Junbesh-e-Milli Afghanistan National Movement Party of Afgh.               5                                  4
     Hizb-i-Wahdat Islami Afghanistan      Islamic Unity Party of Afghanistan          5                        5
     Ehzab-i-Chappi                        Ulomi, Aryan, Ranjbar, Tanai                4                                  4
     Hezb-i-Paiwand-e-Milli                National Solidarity Party of Afg.           4                        4
     Hizb-i-Afghan Milat Party             Social Democrat Party                       3        3
     Hizb-i-Dawat Islami Afghanistan       Afghanistan’s Islamic Mission Org.          3        2       1
     Hizb-i-Iqtedar Islami Afghanistan     Islamic Movement of Afghanistan)            3                         3
     Hezb-i-Jamhorikhwahan                 Republican Party                            3                3
     Hezb-i-Mahaz-i-Milli Islami Afg.      National Movement Party of Afgh.            2        2
     Hezb-i-Afghanistan Naween             The New Afghanistan Party                   1                1
     Hizb-i-Harakat Milli Afghanistan      National Sovereignty Party                  1                         1
     Nuzhat-i-Hambastagee Milli Afg.       The Solidarity of Afghan Nation Party       1        1
     Hizb-i-Kangra Mili Afghanistan        National Congress Party of Afg.             1                1
     Hizb-e Kongra-ye Melli-ye Afg.        National Congress Party of Afg.             1                1
     Hizb-e-Niyaaz Melli                   National Need Party                         1                         1
     Hizb-e-Wahdat Islami Milat            Islamic Unity Party of Nation               1                         1
     Hizb-i-Musharekat Milli               National partnership Party                  1        1
     Hizb-i-Jama’at Dawa                   United Mission Party                        1        1


             Table 3: Illustration of the composition of proto-parties in the W.J.65
61
   See Political Parties in Afghanistan, NATIONAL DEMOCRATIC INSTITUTE (NDI) 16 (June
   2011),https://www.ndi.org/sites/default/ﬁles/Afghanistan-political-parties-july-
   2011.pdf.
62
   Interview with the head of registrar office in 2016 (on ﬁle with author).
63
   One way of examining electoral support of parties across provinces is through Party
   Nationalization Score (P.N.S.) or Party System Nationalization Score (P.S.N.S.), using
   Gini Index. See Anika Moroff, Comparing Ethnic Party Regulation in East Africa, 17
   DEMOCRATIZATION 750, 759 (2010).
64
   See ANDREW REYNOLDS & JOHN CAREY, AFG. RESEARCH AND EVALUATION UNIT, FIXING
   AFGHANISTAN’S ELECTORAL SYSTEM: ARGUMENTS AND OPTIONS FOR REFORM 9 (2012); see also
   Afghanistan’s parties in transition, International Crisis Group (Policy Brieﬁng n°141) (Jun.
   26, 2013), https://www.ﬁles.ethz.ch/isn/166110/b141-afghanistans-parties-in-transitio
   n.pdf


                                                                 297
                                              University of Bologna Law Review
                                                                  [Vol.4:2 2019]
                                                  https://doi.org/10.6092/issn.2531-6133/10333



 As Table 3 illustrates, only Hizb-i-Islami Afghanistan [Islamic Party of
 Afghanistan] has some representatives from different ethnic groups.
 Even so, 78% of its representatives are ethnic Pashtuns, which constitute
 its main base of support. Hizb-i-Jamiat-i-Islami [Islamic Society Party]
 and Hizb-i-Dawat Islami [Islamic Mission Party] have only one M.P. from
 a different ethnic group. Other parties simply represent only one ethnic
 group in the W.J..
         To sum up, Afghan party laws have prescribed thresholds that are
 too high for new parties to qualify for registration, and too futile to
 incentivize old, powerful parties to transform and nationalize. This issue
 is coupled with the lack of a proper enforcement mechanism, which also
 naturally favors the old, traditional parties over the new ones. The failure
 of party development in Afghanistan raises three questions.                          First,
 whether the drafters and the party laws have invested enough value to
 party development; second, whether party laws have provided enough
 incentive for party nationalization; and third, whether the laws have
 recognized the prospect for institutionalizing the emerging cross-ethnic
 coalitions. Each question is discussed below.



     3.1. LACK OF INTEREST IN PARTY DEVELOPMENT

 Enforcing a few banning and aggregating provisions is not enough to
 guarantee institutionalization of broad-based parties;                     the general
 attitude of both laws and lawmakers towards party development is just as
 important. Unfortunately for the parties the party laws of Afghanistan
 were developed under the dominant inﬂuence of political outsiders who
 were more invested in party fragmentation than party development. Both
 incumbents, President Ashraf Ghani and his predecessor, Hamid Karzai,
 came to office as political outsiders and both were concerned about the
65
  The 2010-2015 Wolesi Jirga Directory, NATIONAL DEMOCRATIC INSTITUTE (May 2012),
 https://www.ndi.org/ﬁles/AFG-2010-2015-Wolesi-Jirga-Directory.pdf; Reynolds, at 9-
 10.




                                        298
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10333



 empowerment of Jihadi parties which they considered hostile to their
 administrations.66
         Karzai      was     particularly      concerned        that     facilitating       party
 development would allow Jihadi elites of the north and opposition elites
 among the unsatisﬁed Pashtuns in the south to challenge his presidential
 authority.67 To address his own concern, he even issued a presidential
 decree for the ﬁrst parliamentary election that prohibited candidates
 from using their party symbols on ballots or from publicly demonstrating
 any party affiliation in their campaigns.68
         Embarrassed about their past, intimidated by the presence of
 international forces, and factionalized in even smaller patronage groups,
 party elites have exercised little inﬂuence in the development of party
 laws. Parties had little support among the masses and the government
 due to their notorious past in Afghanistan.69                    Communist and Jihadi
 parties have both perpetuated war, violence, and mass killings in their
 own eras of ruling the country (1979-1991 and 1992-1996 respectively).70
 After the Bonn Conference in 2001, the Jihadi elites—not necessarily their
 parties—have particularly gained signiﬁcant political grounds in
 Afghanistan, generating serious concerns among the masses and the
66
   See Anna Larson, Political Parties in Afghanistan, UNITED STATES INSTITUTE OF PEACE (Special
 Report 362) (Mar. 2015), http://www.usip.org/sites/default/ﬁles/SR362-Political-Partie
 s-in-Afghanistan.pdf; see also ICG, supra note 64, at 3, 5.
67
   See NDI, supra note 42, at 14.
68
   See REYNOLDS Carey , supra note 64, at 6. Even though Karzai’s decree banned announcing
   party affiliations by candidates, around four candidates of 2004 presidential election and
   14% of candidates in the parliamentary election of 2005 did so. See id.
69
   See Andrew Wilder, A House Divided? Analyzing the 2005 Afghan Elections, AFGHANISTAN
   RESEARCH AND EVALUATION UNIT (Dec., 2005), http://www.refworld.org/pdﬁd/47c3f3c01b.
   pdf. (“But by far the biggest challenge confronting political parties in Afghanistan is their
   major image problem among Afghans, who associate them with the various communist
   or jihad-era political parties that have played such a negative role in Afghanistan’s tragic
   history”); see also USAID, Formative Research for Civic Education Programs on Elections:
   Focus Group Discussions in the North, West, Southeast and South of Afghanistan (2005),
   http://pdf.usaid.gov/pdf_docs/pnadz213.pdf. (“The most common deﬁnition in the
   north was that parties were groups of people aligned on an ethnic basis in order to conspire
   against others. In the Pashtun areas of the south and southeast, the most common answer
   was that parties were groups of self-interested individuals organized to serve their own
   interests.”).
70
   See REYNOLDS Carey , supra note 64, at 6; see also, ZEKRIA BARAKZAI, UNITED STATES
   INSTITUTE OF PEACE, SPECIAL REPORT 338: 2014 PRESIDENTIAL & PROVINCIAL COUNCIL
   ELECTIONS, 6 (Nov 2013), https://www.usip.org/publications/2013/10/2014-presidential-
   and-provincial-council-elections-afghanistan.


                                              299
                                                                               University of Bologna Law Review
                                                                                                   [Vol.4:2 2019]
                                                                                    https://doi.org/10.6092/issn.2531-6133/10333



 government, resulting in a push for laws that would constrain party
 development.71 This has led to a set of party laws that were little invested
 in strengthening the party system in Afghanistan. This can be indicated
 by the number as well as the content of provisions speciﬁcally dedicated
 to parties in the Constitution, election law, Political Party Law, and
 parliamentary rules of procedures.
                The Afghan Constitution is among the recent constitutions to
 include few provisions about political parties.                                                     Notably, it has fewer
 references to political parties than most of the plural societies that are
 included in Table 4.72 As Table 4 indicates, the Afghan Constitution has
 seven references to political parties in just four articles, compared to
 eighty-one references in the Kenyan Constitution and seventy references
 in the Sri-Lankan Constitution.73 In fact, the Afghan Constitution ranks
 third from the bottom in Table 4 in terms of its references to and articles
 about political parties. Unlike the Afghan Constitution, the constitutions
 of Kenya and Nigeria as well as Ghana and Philippine have assigned an
 entire chapter or section to political party development.74
                        Political Party in the Constitutions                                    Political Party in Election Laws
       Country      Adoption Year Dedicated Sections References   Articles     Country        Adoption Year        Dedicated Sections   References
     Tanzania           1977               Articles          58       /      Tanzania       85 (Amended, -201            Articles           38
     Kenya              2010                 Part            81     26       Kenya                 2011                 Chapters           206
     Burund             2005               Chapter           38     22       Burund                2009                 Chapters            74
     Nigeria            1999                Section          53     20       Nigeria               2010                 Chapters           243
     Sri- Lanka         1978               Articles          70      11      Sri- Lanka        1981 (2 Acts)             Articles          439
     Ghana              1992                 Part            38      11      Ghana                 2016                  Articles           27
     Sierra Leone       1991               Articles          40      10      Sierra Leone       2012, 2012               Articles          147
     Philippines        1987               Chapter           17       8      Philippines           2016                  Chapter           185
     Malawi             1994               Articles          44       8      Malawi                1998                  Articles           92
     Afghanistan        2004               Articles           7      4       Afghanistan           1985                  Articles           20
     Indonesia          1945               Articles          6       4       Indonesia             2012                 Chapters           280
     Bolivia            2009               Articles           5      4       Bolivia               2010                  Articles            3


 Table 4: constitutions & election laws of twelve countries including Afghanistan
 in relation to their regulation of political parties.75

71
   See SONALI KOHATKAR & JAMES INGALLS, BLEEDING AFGHANISTAN: WASHINGTON, WARLORDS,
   AND THE PROPAGANDA OF SILENCE (2006).
72
   The Indonesian Constitution, which appears to have fewer references to political parties,
   was initially adopted in 1945, which was over half a century prior to the adoption of Afghan
   Constitution. Additionally, the Indonesian Constitution has two references to merger of
   political parties. Therefore, the Bolivian Constitution is the only recent constitution with
   fewer reference to political parties than the Afghan Constitution.
73
   THE CONSTITUTION OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA, 1978; THE
   CONSTITUTION OF KENYA (2010).
74
   THE CONSTITUTION OF KENYA (2010); THE CONSTITUTION OF GHANA, 1992; THE CONSTITUTION
   OF NIGERIA (1999); SALIGANG BATAS NG PILIPINAS [PHILIPPINE’S CONSTITUTION] (1987).
75
   QANUN ASSASSI JUMHURI ISLAMAI AFGHANISTAN [THE CONSTITUTION OF THE ISLAMIC REPUBLIC
 OF AFGHANISTAN], 2004; KATIBA YA JAMHURI YA MUUNGANO WA TANZANIA YA MWAKA 1977



                                                                    300
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10333



 Of the four articles of the Afghan Constitution that address political
 parties, only Article 35 pertains speciﬁcally to political parties, their
 formation and activities.76 Under this article, individuals are entitled to
 form or join political parties provided that parties cannot form or operate
 on the basis of ethnicity.77           Additionally, Article 35 has a number of
 clauses preventing parties from forming militia, using arms, receiving aid
 from foreign states, and having an anti-Islamic agenda.78 The last clause
 of Article 35 is the key provision because it bans parties on the basis of
 ethnicity, sect, language and region.79
         The three other articles of the Afghan Constitution that address
 political parties are rather aimed at restricting party participation in state
 affairs. Article 118 disallows the Justices of the Supreme Court to be party
 members.80 Articles 66 and 80 of the Constitution respectively prevent
 the president and the ministers from using their offices for their partisan
 considerations and interests.81 Interestingly, the executives in all three
 administrations since 2003 have interpreted the latter two provisions to
 mean that government officials cannot be party members. In both of his
 presidential terms, Hamid Karzai used these constitutional provisions to
 [THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA OF 1977] 1977; THE CONSTITUTION
 OF  NIGERIA (1999) (hereafter “NIGERIA CONSTITUTION”); CONSTITUCIóN POLíTICA DEL ESTADO
 [CONSTITUTION OF PLURINATIONAL STATE], 2009 (hereafter BOLIVIA’S CONSTITUTION); THE
 CONSTITUTION OF SIERRA LEONE, 1991; THE CONSTITUTION OF THE DEMOCRATIC SOCIALIST
 REPUBLIC OF SRI LANKA, 1978; THE CONSTITUTION OF KENYA (2010); THE CONSTITUTION
 OF GHANA, 1992; LA CONSTITUTION DU BURUNDI [THE CONSTITUTION OF BURUNDI], 2005;
 UNDANG-UNDANG DASAR REPUBLIK INDONESIA 1945 [THE 1945 CONSTITUTION OF THE REPUBLIC
 OF INDONESIA], 1945; THE CONSTITUTION OF MALAWI, 1994; SALINGANG BATAS NG PHILIPINAS
 [CONSTITUTION OF THE PHILIPPINES], 1987; CONSTITUTION OF CYPRUS, 1960.
 PORTANT CODE ELECTORAL [BEARING ELECTORAL CODE], REVISION N° 1/22 (2009); Public
 Election Regulation (2016); ELECTIONS ACT (Revised Edition, 2012); THE PUBLIC ELECTIONS
 ACT, Gazette Vol. CXLIII, No. 26 (2012); CODE OF ELECTION CAMPAIGN ETHICS (2012);
 PARLIAMENTARY AND PRESIDENTIAL ELECTIONS ACT (1993); ELECTORAL ACT, Official Gazette
 No. 65 (2010); THE REVISED ELECTION CODE, No. 1012 (1965); OMNIBUS ELECTION CODE OF THE
 PHILIPPINES (1985); PRESIDENTIAL ELECTIONS ACT No. 15 (1981); PARLIAMENTARY ELECTIONS
 ACT, No.1 (1981); THE NATIONAL ELECTIONS ACT (2010).
76
    CONSTITUTION, art. 35.
77
   Id., art. 35.
78
   Id., art. 35.
79
   Id., art. 35.
80
   Id., art. 118.
81
   Id., art. 66 (“During the term of office, the Presidential position shall not be used for
   linguistic, sectarian, tribal, and religious as well as party considerations”); Id., art. 80
   (“During their terms in office, the Ministers shall not use their positions for linguistic,
   sectarian, tribal, religious or partisan purposes.”).


                                             301
                                                 University of Bologna Law Review
                                                                     [Vol.4:2 2019]
                                                      https://doi.org/10.6092/issn.2531-6133/10333



 form a party-free executive branch as he encouraged his cabinet
 members to drop their party affiliations.82                In a separate case, after
 running as a party member in the presidential election of 2014 and
 becoming       the     Chief    Executive       Officer—equivalent               to     prime
 minister—Abdullah disassociated himself from the Jamiat-i-Islami Party,
 suggesting that it was due to “his political post [in the government].”83
         Lack of interest in party development can also be noticed in the
 election laws, which typically regulate parties directly through explicit
 provisions as well as indirectly through electoral systems. Incumbents in
 Afghanistan have purposefully pushed for the adoption of the single
 non-transferable vote (hereinafter S.N.T.V.) system to effectively
 disenfranchise parties.84 Although numerous election laws were revoked,
 replaced, and amended, the electoral system remained the same.
 S.N.T.V.’s negative impacts on party development is beyond the scope of
 this paper; however, it is well documented in Afghan parliamentary
 elections that S.N.T.V. encourages intra-party competition, personalistic
 politics,    large     number      of    candidates,         and       ultimately        party
 fragmentation.85          Therefore, the prospect for development of a
 cross-ethnic      party   system      under     an    S.N.T.V.      system        is   almost
 non-existent.
         Furthermore, as Table 4 indicates, the Election Law has twenty
 references to political parties, which puts Afghanistan at the bottom of
 the list of all countries compared in this study. Adopted in 2016, the
 Ghanaian Election Law is the closest to the Afghan Election Law in terms
 of the number of references to political parties; and, Ghana already has a
82
   See Afghan Report, Radio Free Europe (Dec. 30, 2004), http://www.rferl.org/a/1340603.ht
   ml.
83
   Jamiat Split as Supporters Defy New Interim Council, TOLONEWS.COM (May 25, 2017)
   http://www.tolonews.com/afghanistan/jamiat-split-supporters-defy-new-interim-
   council .
84
   See ICG, supra note 64, at 6; see also LARSON, supra note 66, at 3.
85
   See NAT’L DEMOCRATIC INST. FOR INT’L AFFAIRS, THE SEPTEMBER 2005 PARLIAMENTARY AND
   PROVINCIAL COUNCIL ELECTIONS IN AFGHANISTAN 13 (2006); see also Reynolds & Carey, supra
   note 64, at 4; BERNARD GROFMAN ET AL., ELECTIONS IN JAPAN, KOREA, AND TAIWAN UNDER
   THE SINGLE NON-TRANSFERABLE VOTE: THE COMPARATIVE STUDY OF AN EMBEDDED INSTITUTION
   390 (Bernard Grofman, Sung-Chull Lee, Edwin A. Winckler & Brian Woodall eds., 1999);
   Coburn & Larson, supra note 5, at 115.


                                           302
                                                 University of Bologna Law Review
                                                                     [Vol.4:2 2019]
                                                    https://doi.org/10.6092/issn.2531-6133/10333



 two-party system.86           Other countries, however, have many more
 references to political parties than the Afghan Election Law. Election laws
 of some countries, such as Sri-Lanka, Indonesia and Nigeria, are
 party-dominant because parties are the only or main electoral actors
 according to these laws. In other words, only party affiliates can run in
 presidential or parliamentary elections in these countries. By contrast,
 the Afghan election law refers to political parties as one of the many
 political actors in the elections rather than as the main or even an
 important actor.
         According to the thirteen articles of the Afghan Election Law,
 parties can launch campaigns,87 have fair access to state-owned media,88
 attend electoral commission’s meetings,89 send observers,90 attend
 referendum,91 and make complaints.92 Although these provisions imply
 the electoral participation of parties, surprisingly there is no explicit
 provision suggesting that parties can introduce candidates in elections.
 The remaining provisions are restrictive, preventing parties from having
 members       in   the   Independent       Electoral     Commission,93            Electoral
 Complaint Commission,94 and Provincial Complaint Commission.95
         Afghanistan’s W.J. Rules of Procedure makes no reference to
 political parties and their functions in the Assembly.96 Instead, the W.J.
 Rules of Procedure introduced the concept of parliamentary groups to
 encourage the creation of political blocs in the Assembly.97 Under these
86
   See Ghana: Party System and Campaigning, EISA, https://www.eisa.org.za/wep/ghapartiess
   ystem.htm, (last updated Dec., 2012).
87
   See QANOON INTIKHABAT [ELECTION LAW], 2016, art. 4 [hereinafter, Election Law].
88
   See Id., art 19
89
   See Id., art. 20.
90
   See Id., 19(13).
91
   See Id., art 102.
92
   See Id., art. 27(4), 91 (1).
93
   See Id., art. 12
94
   See Id., art. 17
95
   See Id., art. 31.
96
   The Rules of Procedure has no reference to political parties or coalitions at all while
   the regulation has twenty-eight references to parliamentary groups. Chapter ﬁve of the
   Rules of Procedure is about parliamentary groups with four articles. See THE RULES OF
   PROCEDURE, WOLESI JIRGA, art. 18.
97
   See COBURN & LARSON, supra note 5, at 85.




                                           303
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10333



 rules, a parliamentary group must have a minimum of twenty-three
 members.98 These rules ban the formation of any parliamentary group
 that pursues ethnic interests or an ethnic agenda.99                         In their book,
 Derailing Democracy in Afghanistan, Anna Larson and Noah Coburn
 suggest that these rules are designed to prevent the re-emergence of
 ethnic parties in the Assembly.100 When the Assemblies were formed after
 the 2005 and 2010 elections, a number of scholars optimistically
 categorized members of the Assembly into conservatives, liberals and
 moderate-traditionalists; others divided the M.Ps. into pro-government,
 pro-opposition, and independents.101                 However, these categorizations
 were misleading since such parliamentary groups were never formed.102
 In practice, M.Ps.          stayed in ethnic boxes and alliances shifted on
 issue-by-issue bases.103
          Although four parliamentary groups initially registered by 2007,
 forming parliamentary groups gradually became unpopular.104 Members
 of the existing groups have failed again and again to vote in blocs.105
 Today, only one registered parliamentary group is listed on the website of
 the National Assembly.106 Notably, even political parties have failed to
 form their own parliamentary groups partly due to their own
 organizational failures and to the lack of any legal framework for
 parliamentary parties in the W.J. Rules of Procedure.107
98
     See THE RULES OF PROCEDURE, WOLESI JIRGA, Mar. 2017, art. 18.
99
     See id. (“No group may be formed for the purpose of representing personal, regional,
     professional, religious, ethnic, tribal or linguist interests”).
100
     COBURN & LARSON, supra note 5, at 89.
 101
     See WILDER, supra note 69, at 4.
102
     See id.
103
     See Id; see also Wahabuddin Ra’ees, Democratizing Afghanistan: An Analysis of the 2005
     Parliamentary Elections, 14 INTELL. DISCOURSE 33, 42 (2006) (“Despite their strong presence
     in the Wolesi Jirga, observers of government and politics of Afghanistan believe that
     the Islamist right will not speak with one voice. Ethnic and regional divisions and even
     differences over adoption of a speciﬁc strategy will keep them divided.”); THE ASIA FOUND.,
     VOTER BEHAVIOR SURVEY: AFGHANISTAN’S 2010 PARLIAMENTARY ELECTION (2012).
104
     See COBURN & LARSON, supra note 5, at 85.
105
     This information was obtained from interviews with four M.Ps. All Interviewees
     conﬁrmed that members of parliamentary groups were not able to vote collectively (On
     ﬁle with author).
106
     See Parliamentary Groups, WOLESI JIRGA.
107
     There is no evidence that the party members in the Assembly have even attempted to form
     their own parliamentary groups.



                                              304
                                                  University of Bologna Law Review
                                                                      [Vol.4:2 2019]
                                                      https://doi.org/10.6092/issn.2531-6133/10333



      3.2. COMMAND AND CONTROL RULES

  The true inﬂuence of party regulations depends on the level of incentive
  the rules offer for party development. As such, blocking regulations such
  as Article 35 of the Constitution, Article 9 of the Political Party Law, and
  Article 13 of the W.J. Rules of Procedure fall short of bringing about the
  desired party development.108             These regulations are conventionally
  referred to as command and control rules since they offer no rewards or
  sanctions to modify parties’ behavior or structure.109 They merely set
  requirements about what parties should be like and what they should do.
  As Horowitz posited, such regulations function as aspirational provisions
  corresponding “to the illusion of a ‘non-ethnic’ society”.110
         Unlike the above regulations, as an aggregating regulation, article
  9 of the Political Party Law imposes a sanction of suspension against
  parties that fail to meet the three qualiﬁcation thresholds.111 However, the
  question is whether the suspension of parties offer sufficient incentives to
  modify parties’ behavior. The answer seems to be no, given the failure of
  party development in Afghanistan. As a sanction, party suspension has
  not been able to outperform patronage politics that tend to induce parties
  in the opposite direction. Most party elites have had access to patronage
  based on their ethnic affiliation and support.                 Suspension of parties
  targets their registration only and not their access to power, which is
  what the parties are interested in the most. More notably, after obtaining
  permanent registration, parties have even less incentive to nationalize.
  Even if they are suspended and deregistered, they can easily reregister.112
         Additionally, Afghanistan’s Political Party Law imposes a much
  higher burden on the Registrar Office than on parties to prove whether
108
    See Bogaards, supra note 26, at 60.
109
    See Training Package - Module 5: Structure, Composition, and Role of an Energy Regulator,
    UNITED NATIONS INDUSTRIAL DEVELOPMENT ORGANIZATION, https://www.unido.org/sites/de
    fault/ﬁles/2009-02/Module5_0.pdf.
110
    Matthijs Bogaards Ethnic Party Bans and Institutional Engineering in Nigeria, 17
    DEMOCRATIZATION 730, 741 (2010).
111
    ELECTION LAW, art. 9.
112
    See POLITICAL PARTY LAW, art 12 (7).



                                            305
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10333



  the parties have met the requirements. The Registrar Office of the M.o.J.
  does not have regional agencies to investigate or monitor whether, for
  example, the parties have offices across twenty provinces to meet the
  office threshold for registration. The Registrar Office also lacks sufficient
  ﬁnancial and human resources to launch regional investigations on
  whether parties have met such thresholds. In fact, the office has only four
  staff members, which is not enough even to process party registration in
  Kabul.113    This overload of the under-resourced Registrar Office has
  allowed proto-parties to exist by simply claiming to have met or
  surpassed all of the required thresholds.
         A party law has to provide sufficient incentives to help transform
  parties. In other words, the law should offer rewards or sanctions greater
  than those offered by other formal or informal rules, and greater than
  those imposed by the same rule on the government for enforcement. A
  good example of a truly incentive-based rule is the constitutional
  amendment in Comoros that restrict parliamentary representation only
  to those parties that won at least two seats on each of the three islands
  that make up the republic.114 Another example is that of Nigeria wherein a
  party can gain a full registration only if it wins at least ﬁve percent of the
  votes in twenty-four of thirty-six states.115 With these regulations, the
  Registrar Offices do not have to bear any cost of investigating whether the
  party has met the requirement since compliance can be determined by the
  electoral results.     Since parties in these countries exist to compete in
  elections and win offices, these regulations provide sufficient incentives
  to encourage parties to seek support across regional and ethnic lines. In
  these countries, any party that neglects the importance of cross-ethnic
  support, is likely to lose the chance of entry into the parliament.
         Generally, election-based thresholds tend to generate more
  incentives to shape party development than registration thresholds like
  those set by the Afghan Party Law. The registration thresholds normally
113
    It was brought up by the head of the Registrar Office in an interview (on ﬁle with author).
114
    See Bogaards, supra note 26, at 53.
115
    Id., at 54.


                                             306
                                           University of Bologna Law Review
                                                               [Vol.4:2 2019]
                                              https://doi.org/10.6092/issn.2531-6133/10333



impose suspension, denial of registration, and de-registration while the
election-based thresholds put the electoral participation of parties at
stake.   The following table (Table 5.1) shows different types of party
regulations and their incentivizing potentials.            These potentials are
illustrated in Table 5.2 with examples and the colors of the designated
numbers: white (close to zero incentives), blue (insufficient incentives),
and brown (sufficient incentives).




                                 Table 5.1




                                     307
       University of Bologna Law Review
                           [Vol.4:2 2019]
            https://doi.org/10.6092/issn.2531-6133/10333




Table 5.2




 308
                                                     University of Bologna Law Review
                                                                         [Vol.4:2 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/10333



      3.3. LAWS OF NOT THE EMERGING COALITIONS

  The prospect for the emergence of a broad coalition system has attracted
  little attention among Afghan lawmakers. The Afghan Constitution has
  no provisions dealing with political coalitions of any kind. The Election
  Law has only four references to coalitions referring to them merely as
  groupings of parties rather than as emerging distinct entities requiring a
  regulatory framework of their own. Speciﬁcally, in all four articles, the
  word coalition is used in the context of “parties or coalitions of parties”,
  implying that coalitions are extensions of parties.116                       Therefore, the
  Afghan Election Law seems to have given prominence to parties over
  coalitions, whose very existence the law considers to be based on
  collaboration of parties.
          The emerging coalitions in Afghanistan, however, have been far
  beyond the alliance of merely ethnic, proto-parties.                         Although most
  coalitions have a core of a few prominent elites, they are indeed an
  amalgamation of party factions, civil society groups, cleric circles, village
  elders,    district councils,        sports clubs,        women societies,             and art
  associations as well.117 In practice, Afghan coalitions are far larger, more
  participatory, and grassroots-based than alliances of some unpopular
  ethnic parties.      Also, cross-ethnic coalitions have emerged in Afghan
  elections to replace the unpopular, ethnic parties than to bring them
  together.118      Presidential elections in particular, while experiencing
  disintegration of ethnic parties, have witnessed the rise of cross-ethnic
  coalitions as viable alternatives.119 In order to win a required minimum of
  ﬁfty percent votes, viable presidential candidates have been compelled to
  form cross-ethnic coalitions instead of relying on ethnic parties.120 To
116
    ELECTION LAW, art. 4, 9, 27, 105.
117
    See Mohammad Bashir Mobasher, Understanding Ethnic-Electoral Dynamics: How Ethnic
    Politics Affect Electoral Laws and Election Outcomes in Afghanistan, 51 GONZ. L. REV. 355
    (2016).
118
    See Mohammad Bashir Mobasher, Electoral Choices, Ethnic Accommodations, and the
    Consolidation of Coalitions: Critiquing the Runoff Clause of The Afghan Constitution, 26 WASH.
    INT’L L. J. 413 (2017).
119
    See id.
120
    See id.


                                               309
                                               University of Bologna Law Review
                                                                   [Vol.4:2 2019]
                                                  https://doi.org/10.6092/issn.2531-6133/10333



  build their coalitions, they have reached out to political groups and
  communities beyond parties and their factions.121              The most inclusive
  coalitions have indeed been the most viable ones.                 President Karzai,
  President Ghani and C.E.O. Abdullah have all formed larger coalitions than
  other candidates, by including elites and communities of different ethnic
  backgrounds.122          The ever growing political prominence of these
  coalitions,    however,       has remained unappreciated in the laws of
  Afghanistan.
          The Afghan Political Party Law has only a single reference to
  coalitions.123 Similar to the election law, the single reference to coalitions
  in the Political Party Law has a rather party-oriented approach. Article 12
  of the Political Party Law provides that, “A registered political party shall
  enjoy [the ability to join or form a] . . . permanent or temporary political
  alliance or coalition with other political parties”.124 It has not set any
  particular legal framework as to whether the coalitions should register for
  elections, have logos, or even be cross-ethnic. As a result, while some
  coalitions have formed officially with titles, symbols, and constitutions,
  others have functioned merely as political networks and clientalistic
  groups.    Ironically, unlike the proto-parties that have to expand in a
  manner which is formal, cross-ethnic, and programmatic according to
  the law, coalitions are free to be either formal or informal, ideologue or
  clientalistic, ﬁnancially sovereign or puppet organizations.
          Nonetheless, the most viable coalitions in Afghanistan have
  demonstrated that they are better positioned than parties to earn the
  support and votes of different ethnic groups. This is primarily because
  they are formed by equally important elites and factions from different
  groups.       Since their interests are likely to be protected in such
  cross-ethnic coalitions, different ethnic groups are willing to endorse
  them. Additionally, these coalitions provide a constructive environment
121
    See Mobasher, supra note 119, 355.
122
    See id.
123
    POLITICAL PARTY LAW, art. 12.
124
    Id., art. 12.



                                         310
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10333



  for inter-ethnic dialogue, especially when all negotiating partners share
  the goal of winning and governing, for which they need to make
  concessions and compromises.125                   Institutionalizing coalitions will
  further engage these partners in inter-ethnic dialogue. In his seminal
  work,    Ethnic Groups in Conﬂict,             Donald Horowitz suggested that
  inter-ethnic dialogue at the coalition level helps depoliticize ethnicity at
  the national and governmental levels.126 Coalition-building by its very
  nature tends to minimize ethnic politics even though ethnic talks may
  dominate negotiations within coalitions.127
          Afghanistan’s        existing      proto-parties        are      not     any      more
  institutionalized than the emerging coalitions.                    Afghan parties have
  traditional     structures      and    bureaucracies        centered        around       single
  leaders.128 They do not hold general assemblies regularly—or even once,
  in most cases.129 They lack modern institutional and functional features,
  and most importantly, they are isolated from the electoral and political
  scenes.130 Most members of political parties run as independents in both
  presidential and parliamentary elections, only to declare their party
  affiliations after elections.131        Even then, shares of parties in the W.J.
  decreased from 62.4% seats in 2005 to 37.6% seats in 2010.132                                The
  number of truly independent M.Ps. almost doubled in 2010.133 Parties
  have been even less relevant to presidential elections in Afghanistan since
  no party has engaged in a solo campaign in any of the last three
  presidential elections. It is true that the emerging coalitions are unstable
125
     See Danielle Resnick, Do Electoral Coalitions Facilitate Democratic Consolidation In
     Africa?     5/19 Party Politics 736-747, 739 (2011); see also M. A. Mohamed Salih
     and Per Nordlund, Political Parties in Africa: Challenges for Sustained Multiparty
     Democracy, INTERNATIONAL IDEA RESEARCH AND DIALOGUE COORDINATION (2007)
     http://www.idea.int/sites/default/ﬁles/publications/political-parties-in-africa-challen
     ges-for-sustained-multiparty-democracy.pdf.
126
     DONALD L. HOROWITZ, ETHNIC GROUPS IN CONFLICT 419 (2ND ED., 2001).
127
     See Herbert Kitschelt, The Formation of Party Systems in East-Central Europe, 20/1 POLITICS
     AND SOCIETY 7-50, 20 (1992).
128
     See IBRAHIMI, supra note 7, at 10.
129
     See id.
130
     See id., at 5.
 131
     See REYNOLDS & CAREY, supra note 64, at 9; ICG, supra note 64, at 5.
132
     REYNOLDS & CAREY, supra note 64, at 10.
133
     Id.



                                              311
                                                                                 University of Bologna Law Review
                                                                                                     [Vol.4:2 2019]
                                                                                      https://doi.org/10.6092/issn.2531-6133/10333



  and clientelistic, but so are the proto-parties. In terms of inclusiveness,
  however, the emerging coalitions come closer to the objective of Article 35
  of the Constitution than proto-parties.134
                  Afghanistan is not a unique case in which party laws have failed to
  regulate coalitions effectively.                                     Although most democratizing states
  witness the emergence of cross-ethnic coalitions, their laws have failed
  to grasp an appreciation for these coalitions. As Table 6 indicates, very
  few countries on the list have set a legal framework for coalitions in their
  constitutions (six countries), election laws (four countries), and party
  laws (ﬁve countries).
                                                 Coalitions (+Mergers) in Party Laws of Eleven Countries
                                  In Con.                            In EL                               In PPL                     Total
        Country
                     No. of References No. of Articles No. of References No. of Articles No. of References No. of Articles   References Articles
      Ghana                2 (+1)             1                  0                0              4(+3)          1(+1)            10        4
      Kenya                   4               4                  0                0             33(+19)           11             56        15
      Philippines             4               3               14(+3)              2              10(+1)           4              32        9
      Nigeria              2 (+2)             2                (+16)            (+2)                0             0              20        4
      Burundi                 2               2                  4                3              13(+3)           5              22       10
      Indonesia               2               2                  0                0                (+3)           2               5        4
      Bolivia                 0               0                  10               7             47(+16)          26              73       33
      Sierra Leone            0               0                   2               1               1(+6)           1               9        2
      Afghanistan             0               0                  4                4                  1            1               5        2
      Sri-Lanka               0               0                  0                0                 0             0               0        0
      Tanzania                0               0                  0                0                 0             0               0        0
      Malawi                  0               0                  0                0                 0             0               0        0


  Table 6: Political coalitions and merger of parties in party laws of twelve
  countries.135


  Among these countries, the constitutions of only Nigeria and Ghana refer
  not only to political coalitions but also merger of parties.136                                                                Only the
  Philippines, Nigeria, and Bolivia have more references to coalitions and
  mergers of parties in their election laws than Afghanistan.137 Even so,
  these countries have not provided sufficient legal framework to help
  consolidate cross-ethnic coalitions.                                         Except for Kenya and Bolivia, no
  country in the Table offers public fund or requires registration of
  coalitions because they do not consider coalitions to be permanent or
  structurally independent from political parties. The laws have instead
134
    QANUN ASSASSI JUMHURI ISLAMAI AFGHANISTAN [THE CONSTITUTION OF THE ISLAMIC REPUBLIC
    OF AFGHANISTAN], 2004, art. 35 (the “formation and operation of a party on the basis
    of ethnocentrism, regionalism, language, as well as religious sectarianism shall not be
    permitted”).
135
    Supra note 76; supra note 77; infra 156.
136
    THE CONSTITUTION OF GHANA, 1992, art. 97; THE CONSTITUTION OF NIGERIA (1999), art. 68,
    109.
137
    Philippine: THE POLITICAL PARTY DEVELOPMENT ACT OF 2007 (2007); Bolivia: LEY DE
    PARTIDOS POLITICOS [POLITICAL PARTY LAW] (1999); Nigeria: ELECTION ACT (2010).

                                                                        312
                                                      University of Bologna Law Review
                                                                          [Vol.4:2 2019]
                                                          https://doi.org/10.6092/issn.2531-6133/10333



  focused on transformation of parties, which probably explains why the
  laws have suffered failures in most cases.
          Analyzing party regulations in ﬁve African countries, Denis D.
  Kadima posited that “the laissez-faire approach to [electoral coalitions]
  has made such grouping dysfunctional”.138 He criticized party laws for
  focusing too much on parties without producing an optimal outcome.139
  Kadima argued that despite the abundance of laws encouraging the
  nationalization of parties, ethnic parties tended to exist and even
  ﬂourish.140       Other studies have brought to light the failure of party
  regulations to transform unpopular, proto-parties in South America,141
  Eastern Europe,142 Southeast Asia,143 East Africa,144 and other African
  countries.145       In his book, Political Parties in Conﬂict-Prone Societies,
  Benjamin Reilly concluded that in most cases party laws have functioned
  as aspirational provisions, lacking real enforcement measures.146
138
     Denis K. Kadima, Party Regulations, Nation-building, and Party Systems in Southern and
     Eastern Africa, in POLITICAL PARTIES IN CONFLICT-PRONE SOCIETIES: REGULATION, ENGINEERING
     AND DEMOCRATIC DEVELOPMENT, 201 (Benjamin Reilly & Per Nordlund, eds., 2008).
139
     Id.
140
     Id.
 141
     See Marta Lagos, How People View Democracy: Between Stability and Crisis in Latin America,
     J. DEM., Table 4, (Jan, 2001).
142
     See Richard Rose and Christian Haerpfer, New Democracies Barometer V: A 12-Nation Survey,
     STUDIES IN PUB. POL’Y, 59-62, 206 (1999).
143
     See Bogaards, supra note 26, at 60; see also Aurel Croissant & Philip Volkel, Party
     System Types and Party System Institutionalization: Comparing New Democracies in East and
     Southeast Asia, Party Politics, 2/18, 248 (2012) (Partisanship has a much lower rate in
     Southeast Asian countries. For example, party roots in the society is 30% in Indonesia,
     54% in Philippines, 41% in Thailaind, 57% in Taiwan, and 73% in South Korea… “the
     results of the Asian Barometer Survey (2005–07) show that the percentage of party
     members is low across most countries: 0.3 percent of respondents in Thailand, 0.5 percent
     in the Philippines, 1.2 percent in South Korea, 1.6 percent in Taiwan and 2.2 percent in
     Indonesia. Again, Mongolia is the exception here with 24.2 percent”).
144
     See Moroff, supra note 63, at 750, 762 (“In sum, in the three countries, results for P.N.S. do
     not point to a clear effect of the party laws in favour of parties with a more national support
     base. Banning particularistic parties and requiring parties to have members all over the
     country clearly does not translate into a nationwide following for these parties. Almost
     all opposition parties in the three East African countries therefore failed to mobilize
     support nationwide, no matter if they fulﬁlled the strict representation requirements, as
     in Tanzania and Uganda, or if they did not, as in Kenya”).
145
     See Anika Moroff, Party Bans in Africa: An Empirical Overview, 17 DEMOCRATIZATION 618–41.
     (2011).
146
     Benjamin Reilly, Introduction to INGRID VAN BIEZEN ET AL., POLITICAL PARTIES IN
     CONFLICT-PRONE SOCIETIES: REGULATION, ENGINEERING AND DEMOCRATIC DEVELOPMENT 12
     (Benjamin Reilly & Per Nordlund, eds., 2008).




                                                313
                                          University of Bologna Law Review
                                                              [Vol.4:2 2019]
                                             https://doi.org/10.6092/issn.2531-6133/10333



While critics and proponents have debated the need and efficacy of
banning regulation of ethnic-based parties, none has pointed to the
importance of a proper legal framework for the emerging cross-ethnic
coalitions. A legal framework to promote cross-ethnic coalitions is more
effective than a law aiming to transform political parties.               Under the
current laws in Afghanistan, building new cross-ethnic parties is too
difficult since the thresholds are too high for them to meet. Older ethnic
parties are too difficult to transform since the institutional incentives are
too weak to compensate for their past violence, constituency shifts, and
beneﬁts.   Unlike a new party, an emerging cross-ethnic coalition can
easily meet the thresholds and, unlike an old ethnic party, a cross-ethnic
coalition does not need to transform into something else (larger).
Emerging cross-ethnic coalitions only need a proper legal framework to
incentivize sustainability and consolidation.            An appropriate legal
framework would and should focus more on promoting cross-ethnic
coalitions through public funding, electoral advantages, and registration
requirements    than   on    banning   proto-parties       or    requiring        their
transformation.




       4. REFORMING AFGHAN PARTY LAWS

It is important that the laws should ﬁrst recognize and regulate
coalitions. Then, the laws should provide some ﬁnancial and electoral
advantages to cross-ethnic coalitions and parties over ethnic parties. In
other words, they must raise the cost for ethnic parties and the prize for
cross-ethnic coalitions. This section ﬁrst explains the importance and
effects of formal recognition and public funding of cross-ethnic
coalitions and parties.     Next, it proposes some additional regulatory
designs that have been used to institutionalize parties, but which also can
be used to promote cross-ethnic coalitions.

                                    314
                                                  University of Bologna Law Review
                                                                      [Vol.4:2 2019]
                                                      https://doi.org/10.6092/issn.2531-6133/10333



      4.1. RECOGNIZING AND PROMOTING THE EMERGING COALITIONS

  Article 35 of the Afghan Constitution was meant to encourage ethnically
  inclusive parties, an objective that is better met by the emerging
  coalitions than by existing proto-parties.147 Cross-ethnic coalitions are
  formed primarily to aggregate broad-based support to win elections.
  Ethnic parties, however, exist to serve a different purpose and interest:
  mobilizing ethnic groups, encouraging communal action, and gaining
  power or patronage on behalf of their groups.148 Therefore, promoting
  the emerging coalitions is an incremental step to achieving the objective
  of Article 35.149
          Adopting a legal framework that primarily entails registering
  cross-ethnic coalitions would likely encourage coalitions to become
  something more than just a gentlemen’s agreement.                          In addition to
  registration thresholds, the political laws may include an electoral
  threshold, where only registered, qualifying coalitions can win offices in
  national elections.      As indicated earlier, electoral thresholds generate
  more incentives than registration thresholds. Electoral thresholds may be
  based on the performance of coalitions in the past elections to promote
  their sustainability as well as based on their distribution of offices, votes,
  candidates, or seats across provinces to promote their inclusiveness.
  These measures have popularly been used in some countries to encourage
  nationalization of parties.            In many countries, the law requires
  registration of parties before every election, although in those countries
  the electoral commission rather than a government body is responsible
  for registration and monitoring parties.150
147
    QANUN ASSASSI JUMHURI ISLAMAI AFGHANISTAN [THE CONSTITUTION OF THE ISLAMIC REPUBLIC
    OF AFGHANISTAN], 2004, art. 35 (the “formation and operation of a party on the basis
    of ethnocentrism, regionalism, language, as well as religious sectarianism shall not be
    permitted”).
148
    See Horowitz, supra note 127, 291-295.
149
    QANUN ASSASSI JUMHURI ISLAMAI AFGHANISTAN [THE CONSTITUTION OF THE ISLAMIC REPUBLIC
    OF AFGHANISTAN], 2004, art. 35.
150
    See generally Johanna Kristin Birnir, Party Regulation in Central and Eastern Europe and
    Latin America: The Effect on Minority Representation and the Propensity for Conﬂict,
    in POLITICAL PARTIES IN CONFLICT-PRONE SOCIETIES: REGULATION, ENGINEERING AND
    DEMOCRATIC DEVELOPMENT 159 (Benjamin Reilly & Per Nordlund, eds., 2008).


                                            315
                                                 University of Bologna Law Review
                                                                     [Vol.4:2 2019]
                                                     https://doi.org/10.6092/issn.2531-6133/10333



  Switching the responsibility of registration from the M.o.J. to the electoral
  commission would lead to effective registration and monitoring of parties
  and coalitions.       An electoral commission is better positioned than the
  M.o.J. to evaluate and incentivize the development of cross-ethnic
  coalitions and parties for several reasons.            First, by running elections
  regularly, electoral commissions are better-positioned to generate
  incentives for institutionalization of cross-ethnic coalitions and parties
  through setting electoral, administrative, and procedural rules than the
  M.o.J.’s Registrar Office. Second, unlike the Registrar Office of the M.o.J.,
  the electoral commission has branches in all provinces and districts,
  allowing the commission to make assessments about coalitions and
  parties across provinces without bearing considerable ﬁnancial and
  transportation costs. And ﬁnally, a registrar’s office under an electoral
  commission       is    more   independent       and     less     susceptible        to    the
  government’s policy towards parties and coalitions than a Registrar
  Office under the M.o.J..
         Many countries have transferred the responsibility of party
  registration from executives to their electoral commissions.151 Table 7
  indicates that only four of twelve countries, including Afghanistan, have
  authorized an executive body for the registration of parties.                         In six
  countries, their electoral commissions manage party registrations. In
  Indonesia, both the Ministry of Human Rights and the electoral
  commission are responsible for the registration of parties and coalitions
  in two different stages: registration as a party and registration as an
  electoral party, which is to allow a party to compete in an election.


151
   See, e.g., Moroff, supra note 63, at 750, 757.
152
   Ghana: Party System and Campaigning, EISA, https://www.eisa.org.za/wep/ghapartiessyst
  em.htm (last updated Dec., 2012); see also Nigeria: Election Act (2010); Philippine, THE
  POLITICAL PARTY DEVELOPMENT ACT OF 2007 (2007) Sec. 6, https://www.senate.gov.ph/lis/bil
  l_res.aspx?congress=15&q=SBN-3214; Indonesia, NOMOR 2 TAHUN 2008 TENTANG PARTAI
  POLITIK [LAW NUMBER 2 OF 2008 ON POLITICAL PARTIES] (2008), art. 2 and 3; LAW ON THE
  GENERAL ELECTION OF MEMBERS OF HOUSE OF REPRESENTATIVES, PEOPLE’S REPRESENTATIVES
  COUNCIL AND REGIONAL HOUSE OF REPRESENTATIVES (2012), art. 14; Bolivia: LEY No. 1983
  LEY DE PARTIDOS POLITICOS [THE POLITICAL PARTY ACT], 1999, art. 5.




                                           316
                                                        University of Bologna Law Review
                                                                            [Vol.4:2 2019]
                                                            https://doi.org/10.6092/issn.2531-6133/10333



      Country        Party Registrar Body in    Registration Tiers
      Kenya          Electoral Commission       Provisional Registration   Full Registration
      Nigeria        Electoral Commission       Provisional Registration   Full/Electoral Registration
      Sierra Leone   Independent                Provisional Registration   Full Registration
      Ghana          Electoral Commission       Provisional Registration   Ful Registratior
      Philippines    Electoral Commission       Full Registration          Electora Registration
      Indonesia      Min./Electora Commission   Full Registration          Electora Registration
      Tanzania       Executive                  Provisional Registration   Full Registration
      Burundi        Executive                  Single Tier Registration
      Malawi         Executive                  Single Tier Registration
      Afghanistan    Executive                  Single Tier Registration
      Sri-Lanka      Electoral Commission       Single Tier Registration
      Bolivia        Electoral Commission       Single Tier Registration

  Table 7: Party Registrar Offices and registration processes of twelve divided
  societies.152


  Countries have adopted different approaches to party registration.                                 In
  some countries, including Afghanistan, there is only a single phase of
  party registration. Other countries, like Kenya, Ghana, and Tanzania,
  require a registration process that has two phases:                                   provisional
  registration and full registration.153                  Provisional registration allows
  parties to recruit members, hold public meetings, have access to media,
  introduce their programs, and publicize the party. However, to participate
  in an election, conduct campaigns, or support candidates, parties need
  full registration. This may require different sets of conditions to be met
  by the parties. In Kenya, for example, a party must have a name that is not
  offensive, excessively long, or resembling the name of another registered
  party.154 For full registration, however, the party must have a minimum
  of two hundred voters in each province, a governing member from each
  province,155 and a founding member from each district.156 Some countries
  like Indonesia require an additional electoral registration of parties in
  each election, for which the parties must meet certain electoral
  thresholds.157
153
    See Ghana: Party System and Campaigning, EISA, https://www.eisa.org.za/wep/ghapartiess
    ystem.htm(last updated Dec., 2012).
154
    See Political Parties Act (2007), art. 20.
155
    See Id., art. 23(1)(a)-(c), (Political Parties Act 2007, 23(1)(a)-(c)).
156
    See Id.,art. 23(1)(a)-(d), (Political Parties Act 2007, 23(1)(a)-(c))
157
    See LAW ON THE GENERAL ELECTION OF MEMBERS OF HOUSE OF REPRESENTATIVES, PEOPLE’S
    REPRESENTATIVES COUNCIL AND REGIONAL HOUSE OF REPRESENTATIVES (2012), art. 14.




                                                  317
                                                 University of Bologna Law Review
                                                                     [Vol.4:2 2019]
                                                     https://doi.org/10.6092/issn.2531-6133/10333



      4.2. PUBLIC FUNDING OF CROSS-ETHNIC COALITIONS AND PARTIES

  Public funding of political coalitions is vital to their survival. One reason
  that coalitions in Afghanistan have not been sustainable is because of the
  lack of ﬁnancial support. This is particularly true in the case of opposition
  coalitions that lack the resources to survive between elections, let alone
  institutionalize. As of now, the only provision about public funding is
  Article 15 of the Political Party Law. Article 15 states that parties can use
  “[s]ubsidies by the government in connection with elections”.158 The law
  seems to have excluded coalitions from public funding.                        In practice,
  neither coalitions nor parties have received any public funds.159
          Afghanistan is not the only case where party laws have neglected to
  provide for public ﬁnancing of political coalitions.                    Although most
  countries provide public funds to political parties, they are reluctant to do
  the same for political coalitions. The only two countries under study in
  this article that provide public funding for coalitions, at least on paper,
  are Kenya and Bolivia (see Table 7).160 However, a study by Ingrid van
  Biezen in 2007 indicated that the governments provide subsidies to
  parties in over 77% of consolidated democracies                           and 73% of
  democratizing societies.161 Malawi not only requires public funding of
  parties by a constitutional provision but also ensures that fund to be
  drawn from 0.25% of the national revenue.162




158
    QANUN-I-AHZAB SIASSI [POLITICAL PARTY LAW], 2003, art. 15.
159
    This information was obtained through interviews with leaders of political parties and
    coalitions (on ﬁle with author).
160
    See Ghana: Party System and Campaigning, EISA, https://www.eisa.org.za/wep/ghapartiess
    ystem.htm (last updated Dec., 2012); see also Bolivia: LEY DE PARTIDOS POLITICOS
    [POLITICAL PARTY LAW], 1999, art. 5.
161
    Ingrid van Biezen, Party Regulation and Constitutionalization: A Comparative Overview,
    in POLITICAL PARTIES IN CONFLICT-PRONE SOCIETIES: REGULATION, ENGINEERING AND
    DEMOCRATIC DEVELOPMENT 34 (Benjamin Reilly & Per Nordlund, eds., 2008).
162
    See THE CONSTITUTION OF THE REPUBLIC OF MALWAI, 1994, art. 40(2).


                                           318
                                                                                      University of Bologna Law Review
                                                                                                          [Vol.4:2 2019]
                                                                                             https://doi.org/10.6092/issn.2531-6133/10333


                      Do Parties Receive         When Receive               Why Parties Receive            What is the Threshold
        Country                                                                                                                         Free Media Access?
                       Direct Funding?           Pub. Funding?                 Pub. Funding?                  for Funding?
      Indonesia             Direct                 Election                 Campaign Activities       Performanc at Previous Election          No
                                                                           1. Campaign Activities
      Bolivia        Direct and Indirect   Elections Between Elections                                Performanc at Previous Election          Yes
                                                                                  2. Other
      Malawi         Direct and Indirect            Elections               Campaign Activities       Number of Candidates Present             Yes
      Sri_Lanka      Direct and Indirect             Election               Campaign Activities             Equal Funding                      Yes
      Cyprus         Direct and Indirect        Between Elections                    N/A                          N/A                          N/A
      Burundi        Direct and Indirect        Between Elections        Campaign Activities, Other   Number of Candidates Present             No
      Kenya          Direct and Indirect   Elections/Between Elections   Campaign Activities, Other         Equal Funding                      No
      Sierra Leone        Indirect                     N/A                           N/A                      Equal Time                       Yes
      Ghana               Indirect                     N/A                           N/A                      Equal Time                       Yes
      Nigeria             Indirect                     N/A                           N/A                          N/A                          No
      Philippines            No                        N/A                           N/A                          N/A                          No
      Afghanistan            No                        N/A                           N/A                          N/A                          No



  Table 8: Direct and indirect funds that parties receive in tweleve countries
  including Afghanistan.163


  For the most part, public funding of parties has primarily been aimed at
  levelling the playing ﬁeld and providing equal opportunity to all
  parties.164 However, this cannot be the aim in Afghanistan, where the
  intention is to reduce party fragmentation and encourage broad-based
  coalitions.                     The latter goal requires the use of public funding to
  marginalize ethnic proto-parties while giving an edge to broad-based
  and inclusive coalitions. For this very reason, the laws need to set high
  thresholds so that only large and broad-based coalitions can receive
  funds.               These thresholds should include (a) longevity of coalitions to
  encourage their stability, (b) a speciﬁed number of seats in the Assembly
  to strengthen their discipline, (c) and regional representation of parties
  and coalitions to promote their inclusiveness.
                     Some of these thresholds have been used in different countries
  although with regard to parties and not coalitions.                                                                    For instance, in
  Malawi, any political party that can win over one-tenth of the votes
  nationwide can receive public funds from the government.165 In Burundi
  the government is required to provide public funds proportional to
  parties’ seats in the legislature.166 Similarly, public funding in Germany,
163
    Id., at 209-215.
164
    See id. at 14; Cass R. Sunstein, Paradoxes of the Regulatory State, 57 U. Chi. L. Rev. 407, 412
    (1990).
165
    See THE CONSTITUTION OF MALWAI,1994, art. 40 (2) (“The State shall provide funds so as to
    ensure that, during the life of any Parliament, any political party which has secured more
    than one-tenth of the national vote in elections to that Parliament has sufficient funds to
    continue to represent its constituency”) Political Party Act, 2011, art 25(2)(b) (“A party is
    not eligible for public funding if more than 2/3 of its elected officials are of one gender”).
166
    See LA CONSTITUTION DU BURUNDI [THE CONSTITUTION OF BURUNDI], 2005, art. 84. (“To
    the end of promoting democracy, the law may authorize the ﬁnancing of the political



                                                                             319
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10333



 Austria, Sweden, and Nordic countries depends on the presence of parties
 in the legislatures.167 In the United Kingdom, ﬁnancial aid is provided to
 parties for the purpose of policy research.168




          5. OTHER MEASURES:

     5.1. W.J. RULES OF PROCEDURE AND PARLIAMENTARY PARTIES AND COALITIONS

 The W.J. Rules of Procedure is a potentially important body of party laws,
 even though it does not have a single provision about parties or coalitions.
 It is an important body of party laws because students of party studies
 have conventionally given special consideration to parliamentary parties
 and coalitions. The analyses of party systems, party institutionalization,
 and effective number of parties are primarily based on measuring
 parliamentary parties and coalitions. In spite of that, however, in the
 literature, as well as in practice, few have advocated for well-designed
 Rules of Procedure to foster parliamentary parties and coalitions.
 Nonetheless, if designed properly, the Rules of Procedure can bring great
 discipline to parliamentary parties and coalitions.
          In fact, one reason for the failure of undisciplined parties and the
 prevalence of personalistic politics in the Wolesi Jirga is that the W.J.
 Rules of Procedure have no provisions with regard to parties and their
 functions in the Assembly.169 Likewise, the Rules of Procedure have failed
 to regulate coalitions, merger of parties, or their splits in the assembly.
    parties in an equitable manner, proportionally to the number of seats that they hold
    at the National Assembly. This ﬁnancing may apply both to the functioning of the
    political parties and to the electoral campaigns, and must be transparent. The types of
    subventions, advantages and facilities that the State may grant to the political parties are
    established by the law”).
167
    See FRITZ PLASSER AND GUNDA PLASSER, GLOBAL POLITICAL CAMPAIGNING: A WORLDWIDE
    ANALYSIS OF CAMPAIGN PROFESSIONALS AND THEIR PRACTICES, 159 (2002).
168
    See Biezen, supra note at 162, at 35.
169
    The Rules of Procedure has no reference to political parties or coalitions at all while
    the regulation has twenty-eight references to parliamentary groups. Chapter ﬁve of the
    Rules of Procedure is about parliamentary groups with four articles. See THE RULES OF
    PROCEDURE, WOLESI JIRGA [AFGHANISTAN HOUSE OF THE PEOPLE], 2017, Rule 18.

                                              320
                                                        University of Bologna Law Review
                                                                            [Vol.4:2 2019]
                                                           https://doi.org/10.6092/issn.2531-6133/10333



  Instead, the Rules provided for a new political group called, parliamentary
  groups.        However, parliamentary groups have failed to take hold in
  Afghanistan as much as parties, and coalitions have failed to hold their
  representatives together in blocs in the W.J..
            One reason for the failure of parliamentary groups, coalitions, and
  parties to function cohesively is the way the legislators vote on policies
  and laws. Although public voting is required on principle by the rules of
  procedure,170 it is performed mostly by showing hands and cards. The
  names of those voting for or against a policy is not recorded. Speciﬁc
  places in the legislature have not been designated for these political
  groups. Even though the new hall of the parliament is equipped with
  screens for electronic voting, legislators have refused to use it mainly to
  keep their voting hidden in the crowd. Therefore, the Rules of Procedure
  should allow for and even require recording of M.Ps.’ votes so that M.Ps.
  of the same coalition or party are compelled to vote along the same line of
  policies or draw attention to the fact that they have voted against their
  coalition.



        5.2. ANTI-SWITCHING PROVISIONS

  For cross-ethnic coalitions to sustain, an effective political law should
  provide incentives for coalitions to remain functional and cohesive
  beyond elections.          W.J. Rules of Procedure and other regulations can
  achieve this end by incorporating anti-switching provisions: mandating
  the removal of W.J. members from an office as soon as those members
  decide to disassociate from their parties or coalitions.                             Many new
  democratizing societies have adopted anti-switching laws to promote
  party discipline in their legislatures. As Table 8 indicates, in eight out of
  ten countries, legislators may lose their seats as soon as they disaffiliate
  from their parties or coalitions. Similar provisions exist in other diverse
170
      See RULES OF PROCEDURE (2017), Rule 64, 65, 66.




                                               321
                                                     University of Bologna Law Review
                                                                         [Vol.4:2 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/10333



 societies such as South Africa,171 Mozambique,172 Brazil, Fiji, India, Papua
 New Guinea, Thailand,173 Belize, Namibia, Nepal, Singapore, and
 Zimbabwe.174
                  Country       Constitution Year     Anti-Switching Provision
                Indonesia             1945                      Yes
                Sri-Lanka             1978                      Yes
                Philippines           1987                      Yes
                Sierra Leone          1991                      Yes
                Ghana                 1992                      Yes
                Malawi                1994                      Yes
                Nigeria               1999                      Yes
                Afghanistan           2004                      No
                Burundi               2005                      Yes
                Bolivia               2009                      No
                Kenya                 2010                      Yes

 Table 9: Rules on whether a party/coalition associate can defect his or her party
 once elected.175


 Some scholars have expressed concerns that anti-switching provisions
 may encourage independent candidates, which in turn discourage
 party/coalition development.176 For instance, in Malawi the existence of
 an anti-switching provision177 incentivized more candidates to run as
 independents.178              Nonetheless,      such provisions may discourage
 party/coalition development only when individual candidates have the
 option of running as independent candidates under the election law. Why
 would a candidate choose to run as a party nominee if he or she later loses
 his or her seat because of voluntary party disaffiliation? In Malawi, the
171
     See, e.g., Denis Kadima, Party Coalitions in Post-Apartheid South Africa and their Impact on
    National Cohesion and Ideological Rapprochement, in THE POLITICS OF PARTY COALITIONS IN
    AFRICA, 69 (Denis Kadima, ed., 2006).
172
    See, e.g., Denis Kadima & Zefanias Matsimbe, RENAMO União Eleitoral: Understanding the
    Longevity and Challenges of an Opposition Party Coalition in Mozambique, in POLITICS OF
    PARTY COALITIONS IN AFRICA 149 (Denis Kadima ed., 2006) (“The amendment of 65 of
    the Constitution to provide for the expulsion from Parliament of any MP who associates
    with any party or grouping other than that which sponsored his or her parliamentary
    campaign”).
173
    See Reilly, supra note 147, at 15.
174
    See Janda, supra note 27, at 24.
175
    Supra note 76.
176
    See, e.g., Lise Rakner & Nicolas van de Walle, Opposition Weakness in Africa, J. DEMOCRACY,
    July 2009, at 108, 121 (2009).
177
    THE CONSTITUTION OF MALWAI, 1994, art. 40 (2) (“The Speaker shall declare vacant the
    seat of any member of the National Assembly who was, at the time of his or her election,
    a member of one political party represented in the National Assembly, other than by that
    member alone but who has voluntarily ceased to be a member of that party and has joined
    another political party represented in the National Assembly”).
178
    See Rakner & van de Walle, supra note 177.
                                               322
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10333



  law does not require party affiliation for parliamentary candidates.179
  Therefore, it is no wonder that anti-switching provisions have indeed
  favored personalistic politics rather than party discipline there.
          A similar effect could result in Afghanistan if an anti-switching
  provision were adopted within the existing Election Law since neither the
  law nor S.N.T.V. requires party affiliation for parliamentary candidates.
  However, the law could have a different impact if a mixed system were
  adopted, where for the P.R. elections, only parties could ﬁeld candidates.
  The adoption of an anti-switching rule along with a mixed system
  (S.N.T.V.-P.R.), which has been proposed by a number of scholars and
  organizations, would be expected to bring some discipline within parties
  and coalitions in Afghanistan.180




          6. CONCLUSION

  Party laws have traditionally been meant to gatekeep party proliferation
  while promoting party institutionalization.181                   Party laws deal with
  parties’ legal status, deﬁnition, registration requirements, ﬁnance, and
  even internal organization.182 As such, some scholars have suggested that
  party laws have an important inﬂuence on party development in a divided
  society.183 However, this contribution of the party law has yet to be seen
  in most divided societies which are still struggling to build a functional
179
    See Denis Kadima and Samson Lembani, Making, Unmaking and Remaking Political Party
    Coalitions in Malawi: Explaining the Prevalence of Office-Seeking Behaviour, in THE POLITICS
    OF PARTY COALITIONS IN AFRICA (ed., Denis Kadima, 2006).
180
    See Reynolds & Carey, supra note 64, at 18-21; ASADULLAH SA’ADATI, ET. AL. ELECTORAL
    REFORM: A REPORT ON THE STUDIES, PERFORMANCE, RECOMMENDATIONS OF THE SPECIAL
    ELECTORAL REFORM COMMISSION, 100-111 (2016).
181
    See F. Casal-Bértoa, D. R. Piccio & E. R. Rashkova, Party Law in Comparative
    Perspective (The Legal Regulation of Political Parties, Working Paper No. 16, 2012),
    http://www.partylaw.leidenuniv.nl/uploads/wp1612.pdf.
182
    See Dan Avnon, Parties Laws in Democratic Systems of Government, J. OF LEGIS. STUD. 287
    (1995).
183
    See, e.g., Benjamin Reilly, Political Stability and Party Law in New Democracies
    12 (International Political Science Association Congress, Seminar Paper, 2009),
    http://paperroom.ipsa.org/papers/paper_1084.pdf.


                                              323
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10333



  party system. After analyzing party laws in sixteen countries, Biezen and
  Rashkova concluded that, “in nine out of the 16 states, an increase in
  regulation does not correspond to a decrease . . . in the number of political
  contestants”.184 Benjamin Reilly posited that in most cases party laws
  have functioned as aspirational provisions.185 Therefore, Afghanistan is
  not a unique case where despite some reforms party laws have failed to
  nationalize parties or consolidate some emerging cross-ethnic coalitions.
  By examining parties and party laws in Afghanistan, this article explains
  why party laws fail to produce their intended outcomes.
          The failure of Afghan party laws has been due to the laws being
  drafted at times when political parties were unpopular, and they had the
  least inﬂuence in drafting Political Party Law.                In fact, the laws were
  originally meant to weaken the extant parties without proper regulations
  to encourage new broader parties and coalitions. The extant parties were
  mostly Jihadi party who have been involved in civil war and ethnic
  violence for decades now.186
          Intended for party nationalization, the blocking and aggregating
  regulations are insufficient because they are mostly command and
  control rules that offer little incentives for parties to reconﬁgure their
  politics, missions and organization. Additionally, the laws have remained
  indifferent towards cross-ethnic coalitions that tend to emerge
  particularly during the presidential elections. The general issue that this
  article ﬁnds in the literature and the laws is that both have
  over-emphasized on the arduous transformation of ethnic parties while
  neglecting the more feasible institutionalization of the already emerging
  cross-ethnic coalitions.




184
    I. Van Biezen & E. R. Rashkova, Breaking the Cartel: The Effect of State Regulation on New
    Party Entry, 14 (Economic and Social Research Council, Working Paper No. 12, Aug. 2011),
    http://www.partylaw. leidenuniv.nl/uploads/wp1211.pdf.
185
    See Reilly, supra note 147, at 12.
186
    See REYNOLDS & CAREY, supra note 64, at 6; see also Barakzai, supra note 70, at 6.


                                             324
