Revise Law on Local Government (AF0015)

What is the public problem that the commitment will address?
As stated in the Roadmap on Local Governance Reforms of Afghanistan, the existing Local Governance Law dates back to the Taliban regime and is, therefore, not responsive to the contemporary governance approach in Afghanistan. This law is outdated in that i) it does not clearly define the responsibilities and authorities of the central and local administrations and the relations between the two, ii) it does not contain any mechanism to make the local administration accountable to the public and civil society organizations, and iii) the law has located the decision-making authority, including recruitments and budget allocation to the central administration. These shortcomings in the aforesaid law have fundamentally weakened the public service delivery at local level, shedding negative impact on implementation of development projects such as construction of schools, clinics, and power dams among others.

What is the commitment?
The Local Governance Law will be revised in partnership with CSOs with an ultimate purpose to make sure the law allows for clear definition of responsibilities and authorities of the central and local administrations as well as extends adequate accountability and decision-making authority to the local governance, thereby improving the public service delivery at local level.

How will the commitment contribute to solving the public problem?
Revision of local governance law in participation with civil society can accurately define responsibilities, authorities and relations between local authorities likewise relations between local authorities and central supremacies in accordance with contemporary needs of Afghanistan’s society. This eliminates disruptions in local governance and service delivery as well as leads to better service delivery to public, accountability and accelerates economic, social and cultural development in the country.

Why is this commitment relevant to OGP values?
This commitment ensures civic participation and makes local governments accountable in their purviews and responsibilities to public.

Additional information
This commitment is related to Roadmap for subnational reform citizen-centered governance and Local governance reform.

2. Revision of Local Governance Law in Partnership with Civil Society Organizations

The Local Governance Law will be revised in partnership with CSOs with an ultimate purpose to make sure the Law allows for clear definition of responsibilities and authorities of the central and local administrations as well as extends adequate accountability and decision-making authority to the local governance, thereby improving the public service delivery at local level.

Main Objective

Revision of Local Governance Law in participation with civil society can accurately define responsibilities, authorities, and relations between local authorities as well as between local authorities and central supremacies in accordance with contemporary needs of Afghanistan’s society. This eliminates disruptions in local governance and service delivery as well as leads to better service delivery to the public, accountability, and accelerates economic, social, and cultural development in the country.

Milestones

2.1 Establishing Commission to draft layout for the revision of Local Governance Law by IDLG in participation with CSOs.

2.2 Draft layout for the revision of Local Governance Law by Commission in participation with CSOs, experts, and relevant offices.

2.3 Publicize the first layout of legislative document to collect public opinions and incorporate them into the draft Law.

2.4 Convene two consultative meetings in partnership with CSOs, government authorities, and relevant offices to collect and incorporate public opinions into draft of revised Law by IDLG.

2.5 The draft Law scrutinized at Ministry of Justice in partnership with relevant CSOs and experts.

2.6 Present the final draft to legislative committee of the cabinet of the Islamic Republic of Afghanistan for their comments and approval.

2.7 Submission of the final version of the Law to the Cabinet of the Islamic Republic of Afghanistan for approval.

2.8 Approval of the revised version of the Law at Parliament.

2.9 Approval, publication, and enforcement of the Law.

Editorial Note: For the complete text of this commitment, please see Afghanistan’s action plan at https://www.opengovpartnership.org/wp-content/uploads/2020/01/Afghanistan_Action-Plan_2019-2021_EN.pdf.

Commitment Analysis

This commitment aims to improve public service delivery at the local level by amending the Law on Local Governance. ^[13] The amendment would establish a clearer division of responsibilities and authority between central and local governments and establish a minimum amount of decentralized powers. It would also establish an accountability mechanism that proposes to provide citizens with opportunities to actively participate in governance at local levels. The Independent Directorate of Local Governance will lead the implementation of this commitment, with involvement from the Ministry of Justice, Legislative Committee of the Cabinet, Cabinet Office of the President, and civil society representatives.

In 2018, President Ashraf Ghani passed the Roadmap for Subnational Reform. ^[14] The road map marked the first step, since the end of the Taliban regime in 2001, to reforming governance at the local level. The following issues together define the legal framework of local governance: ^[15]

• Eight primary regions comprising the Capital Region, the East Region, the Southeast Region, the South Region, the Center Region, the West Region, the North Region, and the Northeast Region;
• Thirty-four provinces governed by provincial governors, directors from line ministries, and judicial representatives;
• Districts governed by district governors, tertiary unit officials, security and defense officials, and judicial representatives;
• Municipalities governed by provision of the Municipal Law; and
• Villages governed by local councils (shuras).

The current law was first developed in 1968 and enacted by the Taliban regime under the Islamic Emirate of Afghanistan’s banner in 2000. Considering the political reforms that have taken place since the fall of the Taliban regime in 2001, the provisions of this law are now outdated, insufficient, and disengaged with the progress that Afghanistan has achieved today.

As such, the amendment would cover a very broad scope of demographic, economic, geographic, and political changes. ^[16] To put things in perspective, the current law does not recognize municipalities and local councils as elements of local governance because municipalities and local councils were established only after the law was enforced. This disconnect adds even more urgency and significance for this commitment to succeed.

Prior to this commitment, there had been efforts to amend the law during the second term of President Hamid Karzai’s administration in 2014. However, his administration’s preference for keeping most of the authority at the central level did not correspond with the current administration’s preference for devolution and decentralization. ^[17]

The latter approach is also more in line with civil society’s recommendation. According to the civil society representative from Integrity Watch Afghanistan, the current law and centralized governance system has resulted in ineffective and inefficient public service delivery. ^[18] Every decision regarding service delivery at all levels is decided by officials in Kabul, without any channels for citizens to voice their demands, ^[19] thus generating widespread discontent.

To ensure that the amendment caters to public aspirations, the Independent Directorate of Local Governance will collect input from citizens across the 34 provinces through a public survey. ^[20] Civil society stakeholders will have opportunities to participate in the consultation process with some form of decision-making influence. This scheme is supported by a memorandum of understanding between the Directorate and civil society stakeholders. ^[21] That understanding builds on previous partnership in amending the Provincial Council Law and the Municipal Law.

One of the key civil society concerns with the existing Local Governance Law is that it does not contain any provision for public participation in subnational governance. It leaves local governments with great responsibilities and authority, but virtually no public accountability. Criticisms have also been directed at how public services rarely reflect the needs and priorities of citizens at the local level. ^[22] Consequently, civil society stakeholders confirmed that they will also attempt to incorporate elements of participatory budgeting into the amendment. ^[23] They aim to establish a mechanism in which citizens could influence the decision-making process on how the budget is allocated and, consequently, how public services are delivered. However, it is unclear whether this proposition will eventually be incorporated in the amendment, or how ambitious or meaningful such inclusion might be.

This commitment is relevant to the OGP value of civic participation. If fully implemented as written, the commitment is expected to lead to a moderate potential impact on improving the citizens’ ability to influence better public service delivery at the local level.

The amendment, with a clearer division of core responsibilities, is in itself already a major step toward better public service delivery at the subnational level. It can potentially lead to greater government accountability at the local and subnational levels.

This commitment outlines clear mechanisms for public participation, including in the legislative and amendment processes, as well as anticipated effects on local government administration. The law, if effectively enforced, indicates potential to significantly open government practice at the subnational level. It will thus be likely to contribute to decentralization, clearly define local government authority, and strengthen the enabling environment for improved service delivery. However, the final shape of the law, and its enforcement in practice, will ultimately determine to what extent it will directly result in improved service provision. The lack of specific direction in terms of the amendment, and the absence of measures to enforce the law, limit the scope of this commitment.

Going forward, the government could facilitate pilot projects with select local authorities at different levels to build the capacity of local governments and raise public awareness of the provisions of the amended law. Once best practices are formulated, they can be replicated across all local authorities to ensure that in addition to the legal framework, citizens understand their roles and responsibilities under the provisions of the amended law. The government could also engage a broader spectrum of civil society stakeholders, particularly those with influence at the local level, to act as facilitators for citizens.