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Can you, should you, be allowed to ban the AfD?
The question of banning the AfD divides opinion
© Carsten Koall / DPA
Top results in surveys, political opponents at a loss: The AfD is currently experiencing a surge in Germany. Now of all times the political competition is debating a ban. Can this be done?
It’s a delicate case. Can you legally slow down a party that attracts a fifth of voters nationwide in surveys? A party that is heading for electoral success in East Germany this year and is leaving its political competitors at a loss? The debate about a ban AfD is in full swing, based on extremist tendencies in the far right party. But supporters also know that the legal hurdles to a ban are high and the political risks are considerable.
Why is a ban on the AfD even being discussed?
The AfD, founded in 2013, is now rated as “certainly right-wing extremist” by the respective Federal Office for the Protection of the Constitution in three federal states. She is considered a “suspected case” nationwide. This is explained in detail in the 2022 Constitutional Protection Report. “It is estimated that there are around 10,000 extremist potential within the AfD.”
The AfD’s “ethnic-culturally influenced understanding of the people” contradicts the openness of the concept of the people in the Basic Law, the report says. “Right-wing extremist and conspiracy theory narratives are served” as well as “anti-foreigner and anti-Muslim positions”. There are also indications of anti-Semitic positions, as well as “defamation and slander of political opponents as well as the state and its representatives.”
The AfD is legally defending itself against the classification as a suspected case and accuses the Office for the Protection of the Constitution of discrediting the party for political reasons. The AfD is being “made politically persecuted,” said party leader Alice Weidel last year star. The party does not want to say anything about the debate about a ban.
Who wants a ban on the AfD?
There are supporters in almost all democratic parties, although not universally. In the SPD, party leader Saskia Esken is more in favor of it, while Eastern Representative Carsten Schneider is against it. In the CDU, Saxon Marco Wanderwitz advocates a ban, while party leader Friedrich Merz does not. Supporters also often express cautious considerations and admit that political arguments against the AfD should actually count. But Green politician Konstantin von Notz also says: “The AfD is a party that deeply despises our democracy.” Left leader Martin Schirdewan calls the AfD a “threat to democracy” and says: “The option of banning parties must not be dismissed too quickly.”
Why don’t the proponents just start a process?
The Basic Law sets high hurdles because parties are protected by the constitution. The federal government, the Bundestag or the Bundesrat can submit applications for a ban. The Federal Constitutional Court decides. The prerequisite for a ban is that the party intends “according to its goals or the behavior of its supporters” to “impair or eliminate the free democratic basic order or to endanger the existence of the Federal Republic of Germany”.
Since the founding of the Federal Republic, there have only been two party bans: in 1952, the Socialist Reich Party (SRP), which was said to be similar to Adolf Hitler’s NSDAP, was banned. In 1956 the Communist Party of Germany (KPD) followed, whose aim was to establish a “dictatorship of the proletariat”.
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What role does the recent NPD ban proceedings play?
However, a ban on the right-wing extremist NPD (today: Die Heimat) requested by the Bundestag, Bundesrat and federal government failed before the Federal Constitutional Court. In 2017, the judges found that the NPD represented “a political concept aimed at eliminating the existing free, democratic basic order.” But there is a lack of “concrete evidence of weight that would make it appear possible that this action will lead to success.” In short: It is not enough for a party to pursue unconstitutional goals, it must also be plausible that it can achieve them.
The NPD ruling now serves as an argumentative aid for opponents and supporters of an AfD ban. Some say: Things are likely to go wrong in the case of the AfD too. Others say: Unlike the NPD, the AfD is now so big that the criterion “could achieve goals” would be met. As always with legal questions, the outcome is open.
What do opponents of a ban say?
Saxony-Anhalt’s Prime Minister Reiner Haseloff (CDU) considers a ban procedure to be “constitutionally almost hopeless and politically problematic.” In order to take the wind out of the AfD’s sails, political solutions must be offered.
Düsseldorf party researcher Thomas Poguntke sees it the same way. “I don’t think it’s the right way to ban a party,” Poguntke told the German Press Agency. “A significant proportion of AfD voters are not right-wing extremists. They have to be won back through political means.” To do this, parties would have to critically question whether they are really making policies for the majority of voters. Otherwise they would have to offer better solutions. “This would achieve more for democracy than through a ban.”
But political science is also divided. All options must be discussed in order to guarantee the protection of the liberal constitutional state, says Magdeburg right-wing extremism expert Matthias Quent. This also includes a debate about a ban procedure. This should not be based on survey results or election dates, but rather on the basis of concrete findings, says Quent.