Arian Mouj Sharifi
CLJ: Last-ditch deal approves draft without vote (AP, WP, IWPR, Mother Jones, RFE/RL)
The Associated Press
January 4, 2004 7:55 AM Eastern Time
Afghans agree on new constitution, council chairman says
By STEPHEN GRAHAM
Afghanistan's constitutional convention agreed on a historic new
charter on Sunday, overcoming weeks of division and mistrust to
hammer out a compromise meant to bind together the war-ravaged
nation's mosaic of ethnic groups.
Just a day after warning that the meeting, or loya jirga, was heading
toward a humiliating failure, chairman Sibghatullah Mujaddedi told
the 502 delegates gathered under a giant tent in the Afghan capital
that last-ditch diplomacy had secured a deal.
"We are very happy that all the members of the loya jirga have
reached a very successful agreement," Mujaddedi said.
A new draft circulated among the members showed that northern
minority languages had been granted official status in their
strongholds, an issue which had brought the meeting close to
U.N. Special Representative Lakhdar Brahimi and U.S. Ambassador
Zalmay Khalilzad hailed the accord.
"It's a huge success for the people of Afghanistan," Brahimi said,
although he added that there was work to do to repair the "bruises"
from the ethnic debate.
"It's a good framework," Khalilzad said.
President Hamid Karzai and ex-king Mohammed Zaher Shah were to join
the gathering later Sunday to oversee the official ratification of
the charter - apparently without a final vote.
Mujaddedi ruled out further floor debate.
"The changes have been discussed already. If you find any mistake in
writing or dictation of the articles you can discuss and correct it"
with council officials, he said. "Then you can return to your
provinces and homes."
Sidiq Chakari, a Tajik delegate and spokesman for faction leader and
former President Burhanuddin Rabbani, who had taken part in a boycott
Thursday, said the deal was a milestone on the way to peace.
"It's a very big achievement. I do hope it will bring friendship
between our ethnic groups," he said. "Everybody wants to switch to
disarmament and reconstruction."
But some Pashtuns, the country's largest ethnic group, were still
fuming that the charter didn't order a reversal of what they say is
the domination of Dari names for public institutions such as
universities and courts.
"There's still one problem," said Khalid Pashtun, although he also
stressed the need to pass the accord.
"It will help demilitarize the capital and inject new freedom into
education, the media, normal life," he said.
The accord will give the U.S.-backed Karzai the strong presidential
system he had insisted on.
Karzai has argued strongly for a dominant chief executive to hold the
country together as it rebuilds and reconciles after more than two
decades of war, and said he wouldn't run again if he didn't get his
It was also a triumph for the United States and United Nations, whose
officials worked tirelessly to broker a backroom agreement to bolster
a peace process begun after the ouster of the Taliban two years ago.
In three weeks of often rancorous debate, religious conservatives
forced through amendments to make the constitution more Islamic -
possibly with a ban on alcohol.
On the other hand, wording was changed to spell out that men and
women should be treated equally - a key demand of human rights groups.
In the most bruising tussle, minorities such as the Uzbeks and
Turkmen from the north won official status for their languages in the
areas where they are strongest, with grudging acceptance from the
more numerous Pashtuns.
Rivals of Karzai, mainly from the Northern Alliance faction which
helped U.S. forces drive out the Taliban for harboring Osama bin
Laden, strengthened parliament with amendments giving it veto power
over more key appointments.
A new commission is to be set up to monitor implementation of the
constitution - another potential power base for a rival.
But with no provision for a prime minister or strong regional
councils, the wide-ranging powers sought by Karzai in a draft
released in November appeared to have survived mainly intact.
The charter makes the president commander in chief of the armed
forces, charges him with determining the nation's fundamental
policies and gives him sweeping power to push through legislation.
"The strong presidency was quickly settled," Khalilzad said, although
he acknowledged parliament had been bolstered. "It's more balanced in
Observers said it was vital for the constitution to command broad
support, and analysts have voiced concern that Karzai's reliance on
the support of his fellow Pashtuns could make him a partisan figure
in the eyes of the country's myriad minorities.
That could make it more difficult to push ahead with other aspects of
the U.N.-sponsored peace drive, especially the disarmament of the
unruly regional factions that control much of the country.
The world body has warned that taming the factions, and persuading
some of the estimated 100,000 militia fighters still roaming the
country, is essential to prevent intimidation from spoiling the
presidential elections scheduled for June.
It has also warned that the poll could be delayed until September to
give Afghan and U.S. troops more time to improve security in the
south and east, where Taliban insurgents and their allies regularly
attack troops, government staff and aid workers.
"The challenge locally is to build on what was positive and attend to
what was negative," Brahimi said, including poor security across the
country for ordinary Afghans which the constitution is supposed to
"They live in fear all the time. The fact is there is no rule of
law," he said.
Delegates at the loya jirga said parliamentary elections would likely
follow within six months.
Afghan Delegates Approve Charter; Following Bitter
Clears Path To Democratic Elections
By Pamela Constable
The Washington Post
January 5, 2004
After three weeks of raw emotional debate and intense
private negotiations, members of a constitutional
assembly in Afghanistan agreed yesterday on a new
charter for the volatile postwar nation, clearing the
way for its first democratic elections in 25 years.
The 502 delegates accepted a political system with a
strong president and a weaker parliament, similar to
the version sought by President Hamid Karzai and
backed by the Bush administration, despite vehement
objections from ethnic minority leaders and Islamic
fundamentalists at the historic meeting.
"There is no winner or loser. . . . This is the
success of the whole Afghan nation," Karzai told
members of the assembly, or loya jirga, shortly after
they stood en masse to endorse the new constitution in
a huge white tent on a university campus in Kabul, the
President Bush praised the outcome in a statement from
Washington, saying the new constitution "lays the
foundation for democratic institutions" in Afghanistan
and will thus "help ensure that terror finds no
further refuge in that proud land."
The adoption of the charter comes two years after U.S.
and Afghan forces routed the extremist Islamic Taliban
movement. It clears a major hurdle in the political
transition that was mandated by the United Nations in
late 2001. The government now hopes to hold
presidential elections this summer, and Karzai is
widely viewed as the favorite.
But the loya jirga, composed of delegates from across
the ethnic and political spectrum, came close to
collapsing several times after it opened Dec. 14.
Repeated bitter confrontations among delegates laid
open deep fissures in Afghan society on such issues as
religion, women's rights and regional dialects.
Several contentious issues were left unresolved in
order to salvage the assembly.
In comments yesterday, the U.N. special envoy to
Afghanistan, Lakhdar Brahimi, was critical of the
obstructionist role regional Islamic militia leaders
had played during the assembly, and he said there
would be little point in holding elections this summer
if adequate security measures were not instituted
throughout the country.
As a result of compromises between Islamic hard-liners
and moderate government reformists, the final charter
did not include a reference to sharia, or Islamic law,
saying only that no Afghan law "can be contrary to the
beliefs and provisions" of Islam. But some observers
said the strength of religious law would depend partly
on who controls the Supreme Court.
The 162-article constitution grants men and women
equal rights, a dramatic advance in a conservative
rural society in which women have traditionally been
subjugated to decisions by their male relatives, with
little access to legal protections.
"There are still some problems with the constitution,
but the process was very positive, because people came
together despite their differences and came to an
agreement without violence," Nader Naderi, a spokesman
for the Independent Afghan Human Rights Commission,
said in a telephone interview from Kabul yesterday.
"This is a major change in the traditional way of
doing politics in Afghanistan."
The loya jirga, which lasted 22 days, erupted in ugly
confrontations several times and nearly collapsed
toward the end. Delegates from ethnic Tajik political
groups, including former Islamic militia leaders,
repeatedly denounced the process and charged that
Karzai was manipulating the constitution to establish
Women at the meeting complained that they were given
no leadership role, and chaos erupted during the Dec.
17 session when one female delegate angrily protested
that "criminals" from Islamic militias should not be
allowed to participate. Militia leaders in turn
denounced her as a communist, and several threatened
to attack her.
Finally the assembly chairman, an elderly former
Afghan president, Sebqatallah Mojadedi, lost his
temper and tried to throw the female delegate out of
the tent, saying her vote was worth only half a man's
In the past week, as major issues were gradually
resolved, new stumbling blocks emerged over what
status, official or otherwise, should be given to the
country's various regional ethnic languages, and
whether government officials should have the right to
hold dual citizenship.
The meeting nearly collapsed again Saturday over the
language issue, but after intense private negotiations
involving U.N. and U.S. diplomats, a compromise was
reached. The government agreed to designate both Dari
and Pashto, the major dialects, "national languages,"
and to refer to the minor dialects of Uzbek and
Turkmen as "official" languages in their respective
The sensitive issue of dual nationalities for
officials, which was raised by government opponents to
undermine several of Karzai's top aides who hold both
U.S. and Afghan citizenship, was reportedly postponed
for future parliamentary debate.
"I'm extremely happy," Qayum Karzai, a delegate and
the president's brother, said by telephone yesterday
from Kabul. "I wish it had not taken so long, and that
the last three days had not gone into such emotional
issues, but the most important parts of the
constitution, the presidential system and the
principles that matter, are still intact."
President Karzai said repeatedly before and during the
assembly that Afghanistan needed a strong presidential
system. Otherwise, he argued, it would bog down in the
same kinds of bitter ethnic disputes that led to
ruinous civil war in the early 1990s. He scaled back
some of the executive powers he had initially demanded
in order to win support from opponents at the meeting.
But some observers said that the vehement public
confrontations at the assembly could cast a pall over
plans for national elections, and that delegates from
both major ethnic groups -- Pashtuns and Tajiks --
feared that they had made too many concessions.
Perhaps the best illustration of the depth of ethnic
divisions was the fight over the national anthem,
which Pashtuns and Tajiks adamantly argued should be
in their respective dialects. Under a compromise
agreement, the anthem will be sung in Pashto, but will
refer to other ethnic groups and include the phrase,
"Allah is great."
There was no formal final vote on the charter, which
the exhausted delegates approved yesterday merely by
rising to their feet in silence for 30 seconds.
Shia Make Constitutional Gains
By Hasina Sulaiman, Shahabuddin Tarakhel and
Hafizullah Gardesh in Kabul
(ARR No. 100, 06-Jan-04)
Institute for War & Peace Reporting
Shia Muslims, a significant minority in Afghanistan,
made important gains in the new constitution passed
Sunday at the end of the Loya Jirga.
Unlike the previous constitution of 1964, when the
king who then ruled Afghanistan had to be a follower
of the Hanafi Sunni school of Islam, a Shia Muslim can
now become leader of the country.
The qualifications for the president under the new
constitution only require a candidate to be a Muslim.
It recognises in Article 131 that Shia – who represent
perhaps 15 per cent of the population – can use their
own school of law in court cases involving personal
Sulaiman Muradi, a Shia from Bamian province, said,
“This new constitution is very different compared with
the last one. We Shias are very happy. In the last
constitution we couldn’t become leader of Afghanistan,
and in school we had to study the Sunni school of
Islam. Now I truly consider myself a real Afghan.”
Most Afghans are Sunni, and use the Hanafi branch of
Islamic jurisprudence. The Shia have their own school
of law, Jafari. Differences between the two often
amount to minor variations relating to the conduct of
prayers and funeral and marriage rituals.
While the Shia welcome the constitutional changes,
some have pointed out that the community has always
followed their own rituals irrespective of the
“Nobody has prevented the performance of our religious
rituals… even during the communist period,” said Shia
scholar Ali Ahmad Fakoor.
A member of the constitution commission, Fatema
Gailani, said article 131 was passed without debate.
“There is no emphasis on the Hanafi school in the new
Afghan constitution. So the followers of the Jafari
school do not need to raise the issue and threaten
national unity,” she said.
Gailani highlighted the political rift between Shia
and Sunni factions which came to a head during the war
against communist rule, increasing distrust between
the two groups.
“During the jihad period… whereas Saudi Arabia and
United States tended to assist Sunni jihadi parties…
the Shia parties sought help from Iran,” she said.
The Afghan deputy minister of Hajj, Sayed Mohammad
Mubarez, who is a Shia, denied suggestions that his
community is a source of tension.
“We have taken part in jihad and in the reconstruction
of the country. Those who say that Jafaris are stirred
up by Iran are wrong. We are Jafaris, not Iranians,”
Hasina Sulaiman and Shahabuddin Tarakhel are
independent journalists in Kabul participating in
IWPR’s Loya Jirga reporting project. Hafizullah
Gardesh is an IWPR editor/reporter in Kabul.
January 6, 2004
After a protracted and painful labor, Afghanistan's
loya jirga gave birth on Sunday to a democratic
constitution, the country's first. Given Afghanistan's
history of violent civil strife, the mere fact that
the 502-member council of elders and local dignitaries
managed to agree on a final draft is extraordinary,
and was hailed as such by many Afghan and
international leaders, who welcomed the news as clear
progress towards a democratic government in
Afghanistan. The big question now is whether the
constitution, so impressive on paper, can be
implemented in practice.
The constitution sets the framework for the first
democratic government in the history of the country,
now to be named "The Islamic Republic of Afghanistan."
The key points of the document provide for a strong
president, two vice-presidents, a cabinet, and a
parliament, with presidential elections to be held in
June. The country will have an official civil law
system, with the caveat that no civil law may
contradict the laws of Islam. Women, strictly
repressed under Taliban rule, are officially
recognized as equal to men and allocated 25 percent of
seats in the lower house of the parliament. The
controversy over the nation's official language, which
almost derailed the entire process, was resolved with
Pashto and Dari, the languages spoken by the biggest
ethnic groups, as the primary languages, with minority
languages to be recognized in specific regions.
The constitution was met with approval by everyone
from human rights leaders and U.S. president George
Bush and to the secretary of the United Nations, Kofi
Annan. In Washington Bush issued a statement
congratulating the loya jirga for creating a country
that will, "help ensure that terror finds no further
refuge." Afghanistan's interim leader, Hamid Karzai,
who lobbied for increased presidential powers,
welcomed of the document, which greatly increased the
power of any future president, as "a success for us
all, for all the people of Afghanistan."
The government funded paper, Anis also welcomed the
document, praising the delegates for having put their
differences aside for the sake of the national
However good the constitution looks in theory, it's
far from clear that the new government will have to
power actually to implement its provisions, as
Mohammed Alam, a delegate to the loya jirga from the
Farah Province, told Agence France Presse:
"This constitution reflects the views of all Afghans
including minorities. It is a well-balanced
constitution, but it is only on paper.... There is no
guarantee of its implementation. There are weapons
everywhere in the country. The government has to
disarm militias and gather the weapons, then it will
be possible to think about implementation of the
constitution and other laws in Afghanistan."
As London's Independent reports Afghanistan's warlords
hold the real power on the ground, and are unlikely to
cede it willingly to a central government.
"Afghanistan, which is the world's largest opium
producer and has a plethora of warlords and militias,
have anything approaching a national judicial or law
enforcement system capable of enforcing the terms of a
new constitution. Corruption abounds, large areas of
the country, which is awash with arms, are lawless."
Groups representing ethnic minorities and women fear
that without provisions to de-militarize warlords,
women and minorities, traditionally hard done by in
Afghanistan, will continue to suffer. Women's rights
in particular has been controversial throughout the
constitutional process. Frustration with the
proceedings led Malalai Joya, 26-year old Afghan
social worker, to interrupt the constitutional
proceedings to condemn what she saw as a convention
full of criminals. Her testimony, brought attention to
the country's mujahideen leaders who had taken part in
the country's civil war of the 1990s, in which they
killed and raped civilians. Joya's outburst was
heralded by feminists -- and landed her under the
protection of the United Nations.
Meena Nanji, a filmmaker who has been working on a
film about Afghan women, writes in the San Jose
Mercury News that mujahideen leaders won't support
"The mujahedeen do not approve of women leading any
part of their lives in public, and harshly intimidate
those who think differently...The litany of laws
passed this year to govern women's conduct reads like
a page out of the Taliban handbook. They include the
banning of coeducational classes; restrictions on a
woman's ability to travel by limiting the time she can
be without a 'mahram,' a male relative or husband; and
forbidding women to sing in public. The biggest blow
to women's rights was dealt in November when a 1970s
law prohibiting married women from attending high
school classes was upheld."
The new constitution officially recognizes men and
women as equal before the law, but many fear that
intimidation and harassment of women will continue.
The independent Afghan weekly, Farda expressed concern
over threats against female delegates to the
convention. Some women who are running for office
under the new constitution have reported having been
threatened by armed men.
Still, the constitution is a huge step for Afghanistan
and represents a break with the past, explains Nader
Naderi, a spokesperson for the Independent Afghan
Human Rights Commission.
"There are still some problems with the constitution,
but the process was very positive, because people came
together despite their differences and came to an
agreement without violence…. This is a major change in
the traditional way of doing politics in Afghanistan."
Afghanistan: Loya Jirga Approves Constitution, But
Hard Part May Have Only Just Begun
By Golnaz Esfandiari
UN Secretary-General Kofi Annan has praised
Afghanistan's new constitution as a historic
achievement. U.S. President George W. Bush says the
document lays the foundation for democratic
institutions and elections before the end of the year.
But observers question whether a country emerging from
more than two decades of fighting can be so quickly
transformed. They say the ethnic divisions that still
exist in the country will make implementation
Prague, 5 January 2004 (RFE/RL) -- After three weeks
of often contentious debate, Afghanistan's new
constitution -- the country's sixth written
constitution -- was approved by consensus rather than
through a vote.
Yesterday, a majority of the 502 delegates signaled
their endorsement of the constitution by silently
standing in a huge tent on the outskirts of Kabul. The
agreement was a relief for the Afghan government and
its allies. Acrimonious debate, ethnic divisions, and,
particularly, the boycott of the voting process on 1
January by more than 40 percent of the delegates had
sparked fears that agreement would not be reached.
On 3 January, the UN's special envoy to Afghanistan,
Lakhdar Brahimi, and the U.S. ambassador to
Afghanistan, Zalmay Khalilzad, held closed-door
negotiations with rival delegates in order to get the
assembly back on track. A compromise agreement was
reached, and the constitution was approved.
Dadfar Sepanta is a professor of political science at
Aachen University in Germany and an expert on
Afghanistan. He considers the Constitutional Loya
Jirga, or grand assembly, a success for the people of
Afghanistan because it makes the government
accountable and guarantees their rights.
"The ratification of the constitution is a huge
success for the Afghan people for several reasons," he
said. "First of all, the structure of the Afghan
government, the governmental institutions, also the
performance of the government and the rights of the
Afghan citizens will have a legal framework."
After more than two decades of war, Sepanta says the
fact that delegates representing different ethnic
groups and minorities in Afghanistan were able to sit
and discuss the constitution should also be considered
"Despite all the difficulties of the past 24 years,
where Afghans solved their problems with force and
guns, this time -- with the help of the international
community -- they could, during 22 days, in a peaceful
manner have a dialogue with each other, talk and
discuss," he said.
Afghan Transitional Authority Chairman Hamid Karzai
has said the new constitution reflects the views of
all Afghans. He also told the assembly: "There is no
winner or loser. Everybody has won."
Analysts, however, say Karzai has emerged as the main
winner, since the strong presidential system he
advocated was finally approved. After much debate,
little was changed from the original draft. Rivals of
Karzai, led by former mujahedin commanders who wanted
to curb the president's powers, did manage to
strengthen parliament with amendments granting veto
power over key presidential appointments and policies.
The president will also have two vice presidents.
Vikram Parekh, a senior analyst with the International
Crisis Group in Kabul, raises doubts over whether the
new constitution ultimately will be supported by
different factions within Afghanistan. "It was a
success for...Karzai, and it's also a success for the
United States, which was backing him wholeheartedly in
this particular respect," he said. "But in terms of
whether it will be a document that will be inclusive
and gain the support of the different sections of the
population, that I'm much more doubtful of."
The main split at the assembly was between two groups
-- the Pashtun supporters of Karzai's government and
the Tajiks, Uzbeks, and other smaller ethnic groups
led by former President Burhanuddin Rabbani, Uzbek
commander Abdul Rashid Dostum, and Islamic
conservative Abdul Sayyaf. The status of languages was
one of the main issues that delayed the agreement.
Dari and Pashtu will be the two official languages,
but northern minority languages have been granted
official status in their strongholds.
Sepanta says the ethnic divides that emerged at the
Loya Jirga could bode ill for the future. "The problem
is that politics in Afghanistan -- particularly in the
last 24 years and specifically in the last week
[during the Loya Jirga] -- had a strong ethnic and
tribal color," he said. "It means that those ethnic
issues that exist in Afghanistan's structure became a
political and ideological tool."
Sepanta added: "If these [ethnic issues] are not
overcome democratically, then my concern is that the
warlords and politicians will take advantage of the
ethnic differences, and this is unfortunately the only
way you can mobilize people. It's not possible anymore
to mobilize people in the name of Islam, communism, or
similar ideologies. The only negative and destructive
tool that exists in Afghanistan are ethnic issues."
Analyst Parekh says the process of adopting the
constitution has sharpened existing ethnic divisions
in the country. "My concern really has been that the
process of creating the constitution, and most
particularly the Constitutional Loya Jirga, has been
one that instead of bridging divisions between people
-- especially the ethnic divisions, which have been
the most polarizing in Afghanistan -- in some ways, it
has actually exacerbated these divisions by throwing
the major debates on the constitution, by casting
these almost entirely on ethnic lines," he said. "That
process of adopting the constitution, I think, may
have in some ways made the process of implementing it
He continues, saying, "I think Karzai's standing as
somebody who represents all of the different sections
of Afghanistan -- all of the different ethnic [groups]
and communities and the Sunnis and the Shias -- this
has probably been damaged to a certain degree by the
real divide between Pashtuns and non-Pashtuns that
emerged during this Constitutional Loya Jirga."
The ratification of Afghanistan's new constitution is
a key step in the UN-backed Bonn process and paves the
way for the country's first democratic elections,
tentatively scheduled for June. Analysts say the
actual implementation of the constitution, however,
will depend on the security situation in the country.
Dadfar Sepanta says, "The acceptance and
implementation of the constitution depends to a big
extent on whether disarmament [of warlords] will be
implemented in Afghanistan, whether there will be an
end to the rule of different regional commanders, and
whether the authority of the central government will
Some analysts say several articles of the constitution
are not clearly defined and that others are open to
interpretation. Article 3, for example, says that "no
law can be contrary to the belief and provisions of
the sacred religion of Islam." Some believe this may
open the door to a strict implementation of Islamic
law. Parekh says clearing up these ambiguities will be
"The main challenges, I think, that lie ahead when it
comes down to implementing the constitution -- one
will be just simply clearing up a lot of the
ambiguities in the constitution," he said. "I mean,
the draft -- there is a last-minute compromise in it
that had a sort of commission for the implementation
of the constitution, but it doesn't clarify at all
what the powers of that commission are going to be.
Conflicts between secular sources of law, like
international human rights law and Islamic law, also
need to be clarified, as well."
Today, a spokesman for Karzai admitted that putting
the constitution into practice in a country that has
experienced more than 20 years of war will be a major
challenge. "Now that Afghanistan is entering a new
era, adoption of a new constitution is vital,"
spokesman Jawed Luddin said. "But more important now
is the implementation of this constitution all over
mariam   August 12th 2004, 2004 2:16 PM
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