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Afghanistan: Distribution of Controversial Electronic Identity Cards Launched

(July 19, 2018) The distribution of controversial Electronic National Identity Cards (known as the e-Tazkira) throughout Afghanistan was launched on May 3, 2018, by Afghan president Ashraf Ghani, with Ghani becoming the first person in the country to receive the card. The president cited security concerns as the factor that made him start the process, noting that the attackers in a recent suicide attack in Kabul may have used fake IDs. (MPs Slam Government’s Decision to Distribute Electronic ID Cards, ARIANA NEWS (May 5, 2018); Ghani Launches Distribution of Long-Disputed e-ID Cards, ARIANA NEWS (May 3, 2018).) The move was met with strong opposition from the Chief Executive (CE) of Afghanistan and members of Parliament, who expressed concern that it would provoke division in the country. (Id)

Background

Parliament passed the Population Registration Act (PRA) in 2013, with the law entering into force in 2014. The main objectives of the Act include verifying the citizenship of citizens by e-Tazkira; regulating the affairs related to registering the population of the country; collecting information about the population of the country; and accurately determining the number of births, deaths, marriages, and divorces. (Qaanoon-e Sabt-e Ahwaal-e Nofoos [Population Registration Act] 1393 [2014], arts. 2 & 4, Ministry of Justice website (in Dari).) The PRA specifies the contents of the identification cards in article 6.

After the Act came into force, President Ghani issued a presidential decree endorsing the inclusion of nationality and ethnicity in the e-Tazkiras. The nationality of a citizen would be “Afghan,” while the ethnicity listed on the card would refer to one of the ethnic groups residing in the country. (Mohammad Hassan Khitab, Ghani Endorses Changes to Population Registration Act, PAJHWOK AFGHAN NEWS (Mar. 2, 2017).) Ghani’s inclusion of the term “Afghan” as the common nationality for all the ethnic groups in the country proved controversial, however, and sparked a great legal and political debate within the country. Many political figures have insisted that the e-Tazkiras be distributed on the basis of the original ratified law, while others believe that the contents of the e-Tazkiras should be in accordance with the president’s decree. (Ahmad Shefaei, Why Has the Distribution of Afghanistan E-Tazkira Taken Many Years?, BBC PERSIAN (Dec. 16, 2017) (in Persian).)

Controversy over “Nationality” and Ethnicity”

Before the PRA was passed in 2013, the main disagreement between lawmakers in Parliament’s lower house (Wolesi Jirga, or House of the People, tasked with making and passing laws) and upper house (Meshrano Jirga, or House of Elders, which is primarily an advisory body) was whether the term “tribe” or the term “Afghan” should be used on the e-Tazkiras. Ultimately, the law Parliament passed included only the citizen’s name, father’s name, grandfather’s name, current residence, original residence, and date and place of birth. (The Afghan Parliament, PAJHWOK AFGHAN NEWS (last visited July 17, 2018); Shefaei, supra.)

At present, critics of the President Ghani’s decree claim that the term “Afghan” refers to a specific “Pashtun” tribal name that does not cover all the citizens of the country and imposes one ethnicity on all citizens, while supporters of the decree claim that the term “Afghan” refers to anyone living in the territory of Afghanistan. In their view, anyone who does not accept the Afghan nationality should leave the country. (Jelena Bjelica & Ali Yawar Adili, The E-Tazkera Rift: Yet Another Political Crisis Looming?, PAJHWOK AFGHAN NEWS (Feb. 22, 2018).)

President Ghani and the PRA

The distribution of the e-Tazkiras was scheduled to begin after President Ghani’s endorsement of the PRA in the first days of his presidency but could not commence because of the protests of some social and political groups who demanded that nationality be included in the e-Tazkira. (Population Registration Act art. 6; Shefaei, supra.) Protesters in Kandahar (a southern, predominantly Pashtun province of Afghanistan), for example, said that they would not take e-Tazkiras that did not include “Islam” as the religion and “Afghan” as the national identity. (Mozaaheray Shemaaray az Baashendagaan-e Welaayat-e Qandahaar [Protest of Some of the Citizens of Kandahar], ARIANA NEWS (Sept. 14, 2015) (in Dari).)

Under pressure from the protests, the presidential cabinet’s Committee of Laws amended article 6 to add nationality and ethnicity to the e-Tazkira and resulted in Ghani’s presidential decree. (Ta‘deel-e Barkhay Mawaad-e Qaanoon-e Sabt-e Ahwaal-e Nofoos [Amending Some Articles of the Population Registration Act], 1395 [2016], arts. 4 & 6, Ministry of Justice website (in Dari).)

When the amendment to article 6 provided for in the presidential decree was sent to the lower house, the house rejected it, saying that including nationality and ethnicity was not necessary in the e-Tazkiras. (Shefaei, supra.) When the upper house approved the amendment, however, a joint commission was convened to resolve the issue but was unable to reach any final decision because of the absence of four of the commission’s members from the lower house—that is, half of the lower house’s members on the commission. (Mohammad Jawad Safdary, (Tarh-e Tazkira-e Electronic Ka’i Ejraaee Khwaahad Shod? [When Will the E-Tazkira Process Be Implemented?], DAILY AFGHANISTAN (Jan. 1, 2018) (in Dari); Decision of a Parliamentary Committee of Afghanistan on the Inclusion of “Afghan” in the Birth Certificate, BBC PERSIAN (Dec. 18, 2017) (in Persian).) Ultimately, despite the absence of those four representatives, the amendment was approved by the other members of the joint commission, which, by law, endows the amendment with the same legal status as if it had been approved by both houses. Many members of the lower house have consequently criticized both the commission’s decision to vote on the amendment when the absence of the four members left the lower house with less representation on the commission than the upper house, and the decision to issue a presidential decree to replace an act already passed by both houses and endorsed by the president. The proponents of the amendment maintain that the law was passed by proper legal process and therefore the e-Tazkiras must be distributed soon. (Mohammad Islam Behnosh, Doo Dastagee bar sar-e Tauzay‘ Tazkera-e Electronikee dar Majles-e Nomaayandegaan [Schism over Distribution of the E-Tazkira in the House of Representatives], YASH NEWS (May 5, 2018).)

The Chief Executive and the PRA

The post of chief executive, which is akin to that of prime minister, was created after Afghanistan’s controversial 2014 election when neither Abdullah Abdullah nor Ashraf Ghani accepted the result of the elections and then agreed to form a “National Unity Government” with executive powers divided between them. (Shamil Shams, Understanding Afghanistan’s Chief Executive Officer, DEUTSCHE WELLE (Sept. 30, 2014).) From the time the post was created, problems and disagreements have arisen between the president and the CE on various issues, reportedly because of violations of the agreement by the two men. (Hamid M. Saboory, What Is Going Wrong with Afghanistan’s National Unity Government?, THE DIPLOMAT (Sept. 29, 2016).)

One of those issues has been the distribution of the e-Tazkiras. After the president started the distribution, claiming security concerns, the CE countered that the lack of agreement in the National Unity government’s leadership rendered the distribution illegitimate and an invitation to a crisis in the country. (Amin Behzad, Abdullah: Shoro‘-e Tauzay‘ Tazkera Electronic Bedoon-e Tawaafoq, Da‘wat ba Bohran Ast [Abdullah: Starting the Distribution of the E-Tazkira Without Agreement Is an Invitation to Crisis] DEUTSCHE WELLE DARI (May 3, 2018).)

The Public and the PRA

Following the committee’s decision and the president’s decision to initiate distribution of the e-Tazkiras, protests broke out in the central provinces north of Kabul, with protesters in Panjshir accusing the president of acting tyrannically. These protesters do not want to be classified as having Afghan nationality and are calling for e-Tazkira that do not mention nationality in line with the original law passed by Parliament. (Tazaahoraat-e Mardom-e Panjsheer dar E‘teraaz ba Tauzay‘ Tazkeray Electronikee [Protest of the People of Panjshir over Distribution of E-Tazkiras], BAZTAB NEWS (May 9, 2018) (in Dari).)

Mohammad Alam Ezidyar, first deputy of the upper house, has said that with protests in eight provinces of the country over the distribution of the e-Tazkiras, the government needs to halt the distribution process until there is political agreement on the issue. (Ezidyaar: Waqtay Mardom Tazkera Namaygeerand, Hokomat ba Kee Tauzay‘ Maykonad [When the People Refuse to Take the E-Tazkira, to Whom Is the Government Distributing Them?] SPUTNIK AFGHANISTAN (June 6, 2018) (in Dari).)

Prepared by Ahmad Vali Behnood, Law Library intern, under the supervision of Tariq Ahmad, Foreign Law Specialist.