Afghanistan’s political and constitutional development Chris Johnson, William Maley, Alexander Thier and Ali Wardak January 2003 About this report This report was financed by the UK Department for International Development (DFID), and managed by the Humanitarian Policy Group at the Overseas Development Institute. The support of these institutions in preparing this report is acknowledged, as are the very generous inputs of all those interviewed in Afghanistan during the course of the research. However, the report reflects the findings of an independent team of researchers, and does not necessarily reflect the views of the British government or others. About the authors Chris Johnson is an independent consultant. She has worked in Afghanistan since 1996, first for Oxfam and then as Director of the Strategic Monitoring Unit (now AREU). William Maley is Associate Professor of Politics at the University of New South Wales. Alexander Thier is an independent consultant. Between 1993 and 1996, he worked in Afghanistan for Oxfam, the International Organisation for Migration (IOM) and UNOCHA. Ali Wardak is a senior lecturer in criminology at the University of Glamorgan. ISBN: 0 85003 635 6 Overseas Development Institute 111 Westminster Bridge Road London SE1 7JD United Kingdom Tel: +44 (0) 20 7922 0300 Fax: +44 (0) 20 7922 0399 Website: www.odi.org.uk/hpg H P G R E P O R T Afghanistan’s political and constitutional development Chris Johnson, William Maley, Alexander Thier and Ali Wardak January 2003 1 Contents Acronyms and glossary of terms v Abstract 1 1. Introduction: the Bonn Agreement and the legacy of 11 September 3 2. Building peace and security 5 2.1 The need for security 5 2.2 Establishing security 7 2.3 National dimensions: the army and police 7 2.4 The National Defence Commission 8 2.5 Disarmament, demobilisation and reintegration 8 2.6 Confidence-building measures 9 2.7 Warlords and the economy of war 11 3. Creating legitimacy and building the state 12 3.1 The need for legitimacy 12 3.2 Providing services 13 4. Designing and approving the constitution 15 4.1 The Constitutional Commission 15 4.2 The Constitutional loya jirga 15 5. The structure of the government 19 5.1 The degree of centralisation 19 5.2 The executive and the legislature 21 5.3 The loya jirga 23 6. The judiciary and the justice system 24 6.1 Substantive law 26 6.2 The Afghan Judicial Commission 27 6.3 Traditional mechanisms of dispute settlement 27 7. Human rights 29 7.1 Women’s rights 29 7.2 Minority rights 30 7.3 Transitional justice and the Human Rights Commission 30 8. Elections 32 8.1 The nature of elections 32 8.2 Preparing for elections 33 8.3 Political parties 35 8.4 The choice of electoral system 36 8.5 Women and the vote 38 8.6 International assistance to electoral processes 38 9. The role of the international community 39 References 41 Annex 1 Methodology 45 Annex 2 Government ministers 47 Acronyms AIA Afghanistan Interim Authority (consisting of the Interim Administration, the Independent Commission for the ELJ and the Supreme Court) ATA Afghanistan Transitional Authority (which includes the Transitional Administration) ATTA Afghanistan Transit Trade Agreement CLJ Constitutional loya jirga DDR disarmament, demobilisation and reintegration ELJ Emergency loya jirga FES Friedrich Ebert Stiftung FNS Friedrich Nauman Stiftung HRC Human Rights Commission IDLO International Development Law Organisation ISAF International Security Assistance Force NDI National Democratic Institute PR proportional representation SRSG Special Representative of the Secretary-General UNAMA UN Assistance Mission in Afghanistan Glossary of terms Loya jirga grand council Shura-i-Nizar Supervisory Council of the North Northern Alliance coalition of anti-Taliban forces Shari’a literally ‘the path to follow’; in a jurisprudential context, the term denotes Islamic Law hawala money transfer system shura (Dari)/jirga (Pashtu) council uluswal district, administered by an uluswali (district governor) Mahkama-i-Ibtedaia district-level court Mahkama-i-Morafa’a provincial appeal court Mahkama-i-Tameez court dealing with cases at the highest level of the judicial system kuchi nomad madrassa school for Islamic studies tanzim/hezb organisation – refers to mujahideen parties mujahideen (sing. mujahid) one engaged in the struggle in defence of Islam Jihad holy war against the infidel sazman organisation nizat movement Afghanistan’s political and constitutional development Abstract The events of 11 September brought dramatic changes to will be one of the key challenges for those tasked with the political landscape of Afghanistan. For the first time in deciding upon the structures of government. More broadly, more than two decades, there was a real possibility of peace structures and systems of government that maximise and stability in the country. Unlike in the wake of the representation and stability and reduce the tendency Soviet withdrawal in 1989, this time the international towards conflict will be vital if Afghanistan is not to return community pledged not to walk away. Yet Afghanistan to war. remains riven by factional power, and progress towards the broad-based and fully representative government envisaged A key element of any state is its justice system, and this in the Bonn agreement remains elusive. report considers both the formal system and its relationship with traditional mechanisms of dispute resolution. It argues This report – the product of hundreds of conversations that the two need to work together to produce a service with Afghans as well as key members of the international that is accessible to all, fair and free of corruption. Justice community – aims to identify ‘the key issues underpinning also requires an ending of the long-standing climate of Afghanistan’s constitutional and political development’ and impunity in Afghanistan, and ensuring that human rights the ‘key policy options for the Afghan Transitional are both fully guaranteed within the constitution, and Administration (ATA) and other members of the protected in practice. This must include the rights of international community’. It argues, however, that achieving women, so long denied under both the Taliban and previous the constitutional and electoral processes provided for under administrations. As part of action on human rights, there the Bonn Agreement will first and foremost depend upon needs to be political, financial and administrative support improvements in security throughout the country. This to the independent Human Rights Commission. will require substantially greater progress than has so far been seen in the formation of a professional, multi-ethnic If elections are to be held according to the timetable agreed national army; the demobilisation and reintegration of at Bonn, major improvements need to be made in security. armed personnel; and measures to reduce warlord power Substantial and credible human, material and financial and action on drugs. resources must be committed soon, and an independent electoral commission should be appointed in order to At the heart of the debate on the constitution and elections address the many complex questions associated with the is the wish to build a peaceful and stable state. To achieve election process. If security does not improve, and free and this, the government must build a minimum level of fair elections cannot be assured, the election timetable legitimacy in the eyes of its citizens. The achievement of should be renegotiated. such legitimacy is a complex process. This report is concerned primarily with the formal systems of In order to fulfil its pledge to Afghanistan’s people, and to governance, including the constitutional and electoral have any chance of seeing peace and stability, the international processes. Equally important will be issues regarding fiscal community needs to sustain its engagement in the country policy and reform of the public administration. over the coming years. Specifically, it needs to maintain a long-term political engagement with the country; commit This report argues that there is a need for a wide-ranging to long-term funding at an adequate level for reconstruction; public consultation on the draft constitution, and that the ensure that this funding is provided in a principled, lessons from the Emergency loya jirga must be acted upon accountable and transparent fashion that supports the state in the organising of the Constitutional loya jirga. Getting rather than factional interests; and commit to a long-term the relationship between the centre and the provinces right presence for international security assistance forces. 1 Afghanistan’s political and constitutional development 2 Afghanistan’s political and constitutional development 1. Introduction: the Bonn Agreement defeat of one unified force by another. The allies that the US chose were not united, and the Taliban’s defeat has and the legacy of 11 September only laid bare the earlier conflict between them. The United Front, more commonly known as the Northern Alliance, The attacks on the World Trade Center and the Pentagon was set up in 1996 by the groups opposed to the Taliban, on 11 September 2001 marked the start of a new political but it never merged its command structures and the parties situation for Afghanistan. The US-led campaign in the retained their various patrons amongst Afghanistan’s country led to the collapse of the Taliban regime, the entry neighbours; in turn, the varying interests of these patrons of Northern Alliance forces into Kabul and the eventual fuelled the divisions among the Afghan groups. Behind signing of the Bonn Agreement in December 2001. This the mask of the Bonn Agreement lie many of the problems provided for the setting up of an Afghanistan Interim that enabled the Taliban to gain the control it did: the Authority (AIA) and the convening within six months of rivalries of the various groups making up the Northern an Emergency loya jirga (ELJ) to decide upon an Afghanistan Alliance, corruption in government, poor security, and the Transitional Authority (ATA), including a broad-based feeling of many Pashtuns that they are left out of power.2 transitional administration.