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A Brief Look at the Final Negotiations on the Constitution of Afghanistan
By Barnett R. Rubin January 4, 2004
This is a brief analysis of the constitution passed earlier today, based on an unofficial translation.
Form of Government The draft establishes two vice-presidents rather than one. This has been portrayed as a concession to non-Pashtun ethnic groups, but actually it is a concession to ethnic groups other than Pashtuns and Tajiks, which suits the palace very well. The president had always preferred multiple vice presidents and accepted the single vice presidency as a concession to Fahim. But Fahim turned out to be unable to deliver anything at the CLJ. He has definitively lost any claim to be the pre-eminent leader of Shura-yi Nazar. So what looks like a concession by Karzai is actually a defeat for Fahim, signifying an alliance between the presidency and Hazaras in particular. This might be a reward to Khalili for his support, though he, too, proved unable to deliver his alleged followers. Much has been made of the powers of the presidency. In a mere month, according to the press, Hamid Karzai has gone from being a powerless figurehead to an incipient dictator with untrammeled powers. Both the former and the latter characterizations are much exaggerated. The president has normal powers for any presidential system, no more. The negotiations made a purely symbolic change from "confirmation" to "approval" of appointments by the Wolesi Jirga and added a few more appointments to the list of those requiring approval (taswib). The draft also requires the approval of the National Assembly (not WJ) for determining the basic policies of the nation, which will either totally cripple the president or turn out to be a purely symbolic meaningless change. My money is on the latter. The transitional measures call for every effort to be made to hold the first presidential and WJ elections concurrently. This means they will be held separately. The US will move heaven and earth to have presidential elections this year, probably in September. The real problem with this system is the one with any pure presidential system: there is no mechanism to resolve a conflict between the executive and the legislature, which often leads to deadlock, creating incentives for extra-legal actions or impeachment (cf. Venezuela, Bolivia, or the US under Clinton). But a parliamentary system would be unable to form a stable government under current conditions, and a semi-presidential system would probably lead to open conflict between the president and the prime minister. It is not hard to show that ANY system of government cannot work in Afghanistan. In his address to the CLJ, the president argued that Afghanistan needs this system for 10-15 years, until there is greater stability. This implies the need for a review of the constitution under new conditions. Of course the president might become a dictator, but this is not because of anything it says in the constitution. It is because there is no effective rule of law or administration. Abuse of power is the great defect of any presidential system, and the weakness of courts and independent institutions, and, for quite some time I am sure, the parliament, will indeed be conducive to abuse of powers, even as the president may be unable actually to use his powers to govern the country, for much the same reasons. As different parts of the constitution will be implemented at different times and the presidency first, the constitution establishes a commission to oversee implementation of the constitution, presumably as a confidence building measure. The constitution establishes independent electoral and human rights commissions and an independent Central Bank. The latter is required to consult with the WJ about printing money, as there is a great deal of suspicion about the independence of the bank. Some delegates seemed to think that the president of an independent bank could print all the money he liked and give it to his friends. Given who the president of the bank is, this became an ethnic issue. The constitution unfortunately does not establish an independent civil service. Only the president and VPs are fully prohibited from having double citizenship. Rather confusingly, the constitution forbids ministers from having double citizenship, but then says it is acceptable if the WJ approves. But since under article 64(11) all ministers have to be approved by the WJ anyway, this does not seem to add anything. Identity This is the most multi-ethnic constitution Afghanistan has ever had, even as it establishes a form of government that is supported most strongly by Pashtuns. It recognizes fourteen ethnic groups and nine languages. In addition to the two national official languages, it recognizes the official use of six other languages in areas where they are spoken. Only Arabic (which is not actually spoken as a native language in Afghanistan, though there are ethnic "Arabs") does not receive this status. The national anthem, however, remains in Pashto only. The constitution also recognizes Shi'a jurisprudence (fiqh-i tashayyu') in article 131, granting greater equality to Imami and Ismaili shi'a. There appears to be no compromise on decentralization and the appointment of governors, issues of greatest importance to Uzbeks and Hazaras. The constitution simply establishes that the central government may delegate authorities to local units according to law. There is little detail, and much is left open for legislation. I cannot judge from here whether everyone feels they finally got a fair deal or (more likely I am afraid) everyone feels they did not get enough. But this is the first time I can remember the non- violent negotiation of an ethnic balance in Afghanistan, with all major issues actually on the table. That in itself is quite an accomplishment. Islam and Religion There is a carefully balanced set of tradeoffs here. The Islamists strengthened article 3 – no law may now contravene the "beliefs and provisions" (muta'qqidat o ahkam) of Islam. This leaves the door open for shari'a, as interpreted by the SC. The state will prohibit the consumption and smuggling of alcohol. The word "only" has been removed before the phrase "by request of the courts or government" in the judicial review provision of the Supreme Court in article 121. This will have to be clarified by legislation. On the other hand, Islam is now the religion of the state, not of Afghanistan in general, and non-Muslims are free to observe their faith, not just carry out ceremonies, within the limits of the law. Hanafi fiqh remains only residual jurisprudence, as does Shi'a fiqh, except for personal law cases involving Shi'a. The clergy have no official status as such, but only through their role in the judiciary. There are persistent reports that the president or the US ambassador promised Sayyaf control over judicial appointments in return for support of the presidential system, but whatever may have happened does not seem to have been that definite. Political deals have a short shelf life in Afghanistan. The obligation to observe international human rights covenants is not qualified by reference to Islam. The SC has the power to review international treaties for compatibility with the constitution. In civil law countries like Afghanistan this is normally carried out before rather than after signing and ratification, and it is not clear from the text if this jurisdiction can be retroactive. If the SC asserts retroactive jurisdiction over treaties, we are in for some interesting discussions. Rights The final draft includes in article 22 that all citizens "men or women" are equal before the law. Attorney-client communications are privileged, as they were not in the draft. There is a weak form of habeas corpus for the first time. The AIHRC has only weak powers, which will have to be augmented by legislation to be effective. Education supplied by the state has been made free up to BA level. State supplied health care is also to be free. Forced labor is unambiguously forbidden – and then forbidden again for children. Protection for the disabled was strengthened slightly. The constitution requires two women members of the WJ per province, not one as in the draft. This means that the minimum percentage of women in the WJ will be 64/250, or 25.6 percent. This is far more than in most Western democracies. Interestingly, there was little resistance to this, and this provision was not the result of specific foreign pressure, as far as I could see. It was not a UN, US, or EU red line. One woman per province was acceptable. Something has shifted in the politics of gender relations in Afghanistan. The constitution also guarantees seats to nomads and the disabled in the Meshrano Jirga, as well as at least one sixth (16.7 percent) women. How these rights will actually be protected will depend on the reform of the security sector and judiciary, of course. The protections could be stronger, but if they were enforced as written, it would be a big improvement.

Afghanistan's Milestone Zalmay Khalilzad The Washington Post January 6, 2004 The constitutional loya jirga that concluded in Kabul Sunday was a milestone on the Afghan people's path to democracy. Afghans have seized the opportunity provided by the United States and its international partners to lay the foundation for democratic institutions and provide a framework for national elections in 2004. The Afghan people manifested this remarkable commitment to democracy in two ways. They defied the enemies of Afghanistan's progress -- remnants of the extremist Taliban and al Qaeda forces -- by participating in elections for the delegates to the constitutional loya jirga. The extremists sought to intimidate candidates and voters. They failed. Women especially were not intimidated. There was a powerful reversal of symbolism when the Kabul soccer stadium -- used less than three years ago by the Taliban to execute women accused of adultery -- was used by thousands of women to choose their representatives to the constitutional loya jirga. Of the voting delegates, 102 were women -- more than 20 percent of the total delegates. Second, Afghans overcame their past. Instead of relying on the power of the gun, they embraced the often difficult and sometimes messy democratic process of debating, listening and compromising. They trusted in the power of their words by openly deliberating the important issues. Afghans used newspapers, radios, teahouses, schools, universities, mosques -- even the Internet -- as forums to debate fundamental issues such as the system of government, the role of religion, human rights -- particularly the role of women -- and, in a country with more than a dozen ethnic groups, such emotional issues as official languages and the relationship between the center and provinces. Such a wide-ranging debate is unprecedented in more than 5,000 years of Afghan history. The Afghan people's desire to succeed overcame the potential for failure. In the midst of sharp debates, the delegates and people of Afghanistan were unswervingly committed to obtaining a sound constitution. Attempts by warlords and religious fundamentalists to hijack the process were thwarted. Women and minorities held leadership roles. When one brave young woman denounced some of the delegates for their role in the destruction of Afghanistan in the 1990s, the chairman initially sought to throw her out of the hall. The delegates forced him to relent, and Malalai Joya refused to be intimidated and went on to play an active role in her working committee. By the loya jirga's completion, three women were part of the seven-member leadership team and several more took leading positions in the working committees. When ethnic and regional divisions emerged as possible fault lines over issues such as official languages, the delegates decided to find unity in diversity by making all languages official where they are spoken by the majority. This is unprecedented for Afghanistan and the region. With the Afghan people and the world watching, Hazaras, Pashtuns, Tajiks, Turkmen, Uzbeks and others adopted one of the most enlightened constitutions in the Islamic world. The Afghan constitution sets forth a presidential system with a strong parliament and an independent judiciary. The final document embraces a centralized government structure, which reflects most delegates' belief that years of war and the destruction of national institutions have left the central government far too weak. Delegates strengthened parliament by determining basic state policies and requiring confirmation of key presidential appointees, including the head of the central bank and the director of the national intelligence service. The Afghan constitution also sets forth parallel commitments to Islam and to human rights. While embracing Islam as the state religion, the document provides broad religious freedom -- allowing adherents of other faiths to practice their religions and observe religious rites. The loya jirga increased the number of women in parliament to an average of two female representatives from each province and explicitly stated, "Citizens of Afghanistan -- whether men or women -- have equal rights and duties before the law." Accepting equality between men and women marks a revolutionary change in the roles women are able to play in Afghan government and society. The United Nations has played a vital role in building Afghan political institutions since the Bonn Conference set the country on its current course. In particular the secretary general's special representative, Lakhdar Brahimi, was critical in helping the loya jirga delegates bridge their differences and achieve this successful outcome. Afghanistan faces more challenges: implementing this constitution, defeating the remaining extremists and terrorists, disarming militias, strengthening national institutions, eliminating narcotics production and helping the poorest of Afghans gain a foothold on the ladder of opportunity. After the suffering of the past 20 years, ordinary people of Afghanistan want their country to work. By adopting a sound constitution through an orderly and transparent process, Afghans have cleared a major hurdle. Afghanistan has sent a compelling message to the rest of the world that by investing in that country's development, the United States is investing in success. Americans can take pride in the role we have played in leading the multilateral effort to support Afghan democratization. The toppling of the Taliban and the stabilizing presence of the coalition and NATO International Security Assistance Force troops have enabled the seeds of political progress to sprout. President Bush's decision to increase aid to Afghanistan -- which will likely total more than $2 billion in fiscal 2004 -- will accelerate reconstruction of the country's national army, police force, economic infrastructure, schools and medical system. Our work in Afghanistan is not yet done. It will take several years and a sustained commitment of significant resources by the United States and the international community before the country can stand on its own feet. Given the stakes involved, we must remain committed for as long as it takes to succeed. The writer is special presidential envoy and ambassador to Afghanistan.

MotherJones.com January 6, 2004 Good Government? 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 interest. 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 women's rights. "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."

Philadelphia? No, Kabul Palm Beach Post Editorial Wednesday, January 7, 2004 On Saturday, Afghanistan's constitutional convention was breaking up in failure. On Sunday, the 500 delegates approved a new constitution. That jump from crisis to compromise is a hallmark of democratic governments. Maybe Afghanistan can do this after all. Even as participants celebrated and accepted congratulations, they didn't kid themselves. "We all know," Ladhdar Brahimi told the delegates, "that all we have tonight is a number of pages on which words in Dari and Pashto have been written." Mr. Brahimi, U.N. special envoy to Afghanistan, reminded them that the real challenge is "to translate these words on a piece of paper into a living reality." The references to Dari and Pashto, Afghanistan's dominant languages, acknowledged a problem that also has implications for U.S. policy in Iraq. The constitutional convention nearly crumbled because Afghanistan's traditional Pashtun rulers tried to force Uzbeks, Hazaras and other ethnic minorities to bow to Dari and Pashto as the country's only "official" languages. Ethnic and religious rifts are just as serious in Iraq. It took two years for Afghanistan to approve a constitution, and elections still are six months off. How will Iraq reconcile its competing interests by July 1, as the Bush administration hopes? The Afghanistan constitution also has at least one conflict that also could emerge in Iraq. Women and men are equal under the constitution, but conservatives passed an amendment declaring that all laws must conform to their view of Islam. It's a contradiction that the courts -- when they exist -- will have to settle. The tension reminds Americans of the potential for Afghanistan and Iraq to become radical Islamic states if rebuilding fails. The Afghan constitution envisions a strong president with strong central powers. But the reality is that most power outside Kabul is in the hands of warlords and tribal chiefs, many with more allegiance to their tribes or Taliban remnants they harbor than to the new constitution. The lack of security is the single greatest threat to a new Afghanistan. A bombing Tuesday in Kandahar that killed 13, most of them children, interrupted celebrations for the new constitution. Again, that sounds warnings for Iraq. How does the central government in either country enforce the rule of law? U.S. military power is the temporary solution, but as the occupation of Iraq shows, a troop presence can create enemies. The jump from crisis to compromise in Afghanistan was a political milestone. Given that a stable Afghanistan is as important to United States security as a stable Iraq, it also is a potential milestone for Americans.
Posted By: mariam   September 30th 2004, 2004 3:08 PM

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