The case against an AfD ban

‘The AfD is so 1933’, protest placard, 2024. Img: Elke Wetzig CC BY-SA 4.0

The Alternative für Deutschland or AfD party was classified as a ‘confirmed right-wing extremist endeavour’ by German domestic intelligence last week. In Germany’s supercharged political atmosphere, this news has caused an immediate stir. Many commentators have expressed concerns for democracy itself. Politicians and public figures across much of the political spectrum have been asking: Can you ban a political party?

The debate has largely revolved around whether an AfD ban would work to suppress the party and its support or whether it would backfire. To me, such tactical considerations are beside the point. The question isn’t whether you can ban a political party but whether you should. And the answer to that is ‘no’. Limiting democratic choice is no way to protect democracy.

In and of itself, the designation of the AfD as extremist by domestic intelligence has few legal ramifications. This classification system was originally intended for internal purposes, basically setting the level of state surveillance deemed proportionate to the suspected threat levels posed by an organisation. By raising the AfD from a ‘suspected’ to a ‘confirmed’ case, the spy agency has effectively given itself more leeway in terms of using informants and surveillance techniques.

But because of Germany’s Nazi past, the new label has immediate political consequences. It’s raised the spectre of a repeat of one of the darkest chapters of human history. The Nazis were right-wing extremists too. What if fascism was to take over again in Germany? Shouldn’t the state and society do everything in their power to prevent that? So what if a party ban offends democracy purists? The horrors of the 1930s and 40s must be avoided at all costs. That’s the drift of the current debate.

In a snap response to the new classification, a wide array of public and political figures have called for an AfD ban. To name but a few: Omid Nouripour, former co-leader of the Green Party and now Vice President of the German parliament, said the new classification of the AfD was ‘a good basis for a speedy banning process.’ Marco Wanderwitz from Chancellor Friedrich Merz’s conservative CDU wants to ‘eradicate’ the AfD. Former German President Christian Wulff has argued that ‘none of the extremists should gain any office with our help because they’ll only use these offices to undermine democracy.’ There is already a parallel debate about whether AfD membership is a reason to sack civil servants.

Those who are against an AfD ban often argue their case on the basis that the legal hurdles may be too high. The leader of the centre-left SPD and Vice Chancellor Lars Klingbeil doesn’t think ‘that a possible banning process, which may take years, is the only instrument to diminish the AfD.’ The General Secretary of the CDU, Carsten Linnemann, said that he’d had plenty of legal advice that the process towards an AfD ban is legally challenging ‘and the result uncertain’. To him, it was also tactically problematic since the AfD could exploit its ‘victim role’.

The parameters of the public debate have already narrowed considerably. The biggest question here isn’t tactical. It’s not about whether an AfD ban is achievable, whether it would work, how long it might take or whether it would further or eradicate the AfD. Rather, the question is whether it’s right to ban a political party in a democracy. Is a democracy still a democracy if you limit the people’s choice to options deemed acceptable by those in power?

I concede that it can be if a group or party seeks to use violence or other non-democratic means to achieve its aims. Few would disagree that domestic intelligence has a core role to play in keeping a democratically elected government safe from efforts to overthrow it.

Take previous incidents of domestic terrorism. The Red Army Faction (RAF), a left-wing extremist organisation that murdered at least 33 people in West Germany, mostly in the 1970s and 80s, sought to overthrow the state. They used methods like bombing, arson, abduction, assassination and robbery to achieve that. While they captured the imagination of some parts of the public, they were a small radical group that didn’t try to win an election and instead focussed on political violence.

By definition, terrorism is a danger to democracy and public safety. That’s why domestic intelligence monitored the RAF (although they crossed the line at various points, for instance, when they faked an RAF member’s break-out attempt from prison). At no point was that group legally trying to come to power. Its explicit aim was to overthrow the existing system by force.

This is what the legal case for an AfD ban would have to prove. Not that individual AfD members hold views that are deemed right-wing extremist but that the party itself is anti-constitutional and wants to implement the dismantling of the system ‘in an active-combative, aggressive manner.’

For a ban, it’s not enough even for a party to display contempt or enmity towards the values of the constitution. ‘The party must want to abolish the functioning of the liberal-democratic basic order in a planned manner,’ and there must be ‘concrete, weighty indicators that it seems at least possible that the actions of the party could be successful.’

German domestic intelligence has not released the 1100-page document that, at this stage, seeks to prove that the party is ‘right-wing extremist’ in its orientation, not that it will use ‘active-combative’ methods to overthrow the existing order.

What has been released and leaked seeks to prove that the AfD has an ethnic understanding of the German people rather than a legalistic one. In other words, that having a German passport alone doesn’t make you German in their eyes. As proof, they quote, among others, a regional AfD parliamentarian in the state of Brandenburg who said that multiculturalism means ‘loss of tradition, loss of identity, loss of home, murder, manslaughter, theft and group rape.’

Another argument for the classification is that the AfD didn’t respect Article 1 of the German constitution: ‘Human dignity shall be inviolable’. Domestic intelligence argues that the AfD undermined this by not regarding people with roots in ‘Muslim dominated countries as equal members of the German people, which is defined in ethnic terms by the party.’ As an example, they quote AfD leader Alice Weidel associating Islam with ‘group rape’, which she described as a ‘phenomenon’ that ‘we only see in Muslim cultures targeting infidels.’

One can find these views repugnant, but that’s no reason to ban the party, not legally and not as regards the protection of democracy. As far as the quotes from the report reveal, AfD members and politicians may well hold views that aren’t aligned with the constitution – although the party is challenging this legally and until the matter is resolved by the courts, domestic intelligence has now suspended the classification. But nothing that has been revealed so far seems to indicate that the party’s approach to promoting such views is ‘combative’ or ‘aggressive’ in the legal sense. In other words, their views — whatever one may think of them — are offered legally as part of Germany’s party spectrum.

Regardless of what the AfD thinks or doesn’t think, I find it frankly worrying that so many of Germany’s politicians, commentators and public figures regard AfD positions in and of themselves as a reason to ban the party wholesale when the legal hurdles are rightly much higher. That’s without knowing what the report collated by domestic intelligence actually says and without any clear signs that the AfD is seeking to overthrow the constitution.

Having said that, I understand why people feel so strongly about this. Historians are still arguing over which factors exactly allowed the Nazis to rise to power and to unleash dictatorship, war and genocide on Europe. Was it the dire economic and political circumstances, the inability of the other parties to do anything about that, Hitler’s personal charisma, the support from elites and middle classes, historical antisemitism… a combination of those factors and more? There isn’t a definitive answer. This also means that we still haven’t got a clear idea as to how this could have been prevented. It’s a frustrating and frightening situation because there is no bulletproof way to avoid a repeat.

Yet postwar West German democracy reassured itself that it had found a formula to prevent fascism from rising again on German soil: a combination of memory culture, education, economic prosperity and a constitution that addressed the vulnerabilities of Weimar democracy. ‘Berlin isn’t Weimar’ is a mantra you often hear.

Postwar German democracy also understands itself as ‘wehrhaft’ – ‘able to defend itself’. It has methods of surveillance as well as the banning of people and parties from political power at its disposal. The logic was that with all those means combined, the Weimar Republic could have prevented Hitler’s rise, a reassuring thought and a useful psychological crutch in the post-war decades, but not one that can be proved by scholarly means.

It’s this history that makes Germans quicker to call for a party ban than people in many other Western democracies. You may have seen the ‘spat’ on social media between US Secretary of State Marco Rubio and the German Foreign Office. Responding to the classification of the AfD as right-wing extremist, Rubio said, ‘Germany just gave its spy agency new powers to surveil the opposition. That’s not democracy—it’s tyranny in disguise.’ The German Foreign Office responded: ‘This is democracy. This decision is the result of a thorough & independent investigation to protect our Constitution & the rule of law. It is independent courts that will have the final say. We have learnt from our history that rightwing extremism needs to be stopped.’ One man’s ‘tyranny’ is another man’s ‘democracy’.

I have deliberately not commented on whether the AfD’s views really are extremist or on the fact that they are now the largest opposition party, even topping some of the recent polls ahead of all other parties. None of these things should be relevant for a party ban.

Of course, a small party would be easier to ban than a large one. West Germany did that twice after the war with a successor of the Nazi Party and with the Communist Party. Few people decried that at the time because both were small movements. Banning the AfD, on the other hand, would disenfranchise between a fifth and a quarter of the electorate.

I also realise that people are tempted by the idea of disappearing opinions along with the party that promotes them. Again, that’s not just questionable but also irrelevant. The only thing that matters is whether or not a party wants to use undemocratic means to destroy the system. For the AfD, there appears to be little evidence to that effect.

How German this debate is becomes apparent when you step out of the media cycle there. When I do interviews in the UK on this, British journalists, including left-leaning ones, often ask incredulously whether Germany is really thinking about banning a large political party. Even ardent enemies of Reform UK don’t tend to say the party should be banned despite its surging popularity. I know Reform isn’t the AfD, but again, that’s not the point. The point is that democracies shouldn’t ban parties, not even when they challenge the status quo. So long as they do that without violent and aggressive means, they must have a right to do so.

The uncomfortable truth is that democracies are inherently fragile things. There is no failproof means of protecting them from the wishes of the people. By definition, if you set up a system in which ideas can freely compete with one another, you have to live with the whole range of views being on offer. A democracy that pre-selects valid voting options risks eroding the very principles it seeks to protect.