Part VI

Middle East and Central Asia

© Copyright by the Endowment of the United States Institute of Peace © Copyright by the Endowment of the United States Institute of Peace 20 Big Tent, Small Tent The Making of a Constitution in Afghanistan1

J Alexander Thier

n late 2003, Afghanistan experienced a those centered on urban-rural, modern- moment of hope for renewal and rec- traditional, and ethnic distinctions, as well onciliation after decades of turmoil and as on divergent views on the role of Islam in Idevastation. Thirty years earlier, a coup had politics. These cleavages have fueled—and upended a nascent democratic order, setting have been further exacerbated by—recent off a series of invasions, regime changes, and conflicts. Moreover, in the course of thirty civil wars that would kill 10 percent of the years, Afghanistan changed from a constitu- population, send a third of Afghanistan’s peo- tional monarchy to a republic, to a commu- © Copyrightple into exile, and destroy theby infrastructure the Endowmentnist dictatorship under Soviet occupation, of to and economy of this already least-developed a failed and fractured state engaged in dev- thenation. United In December 2003, States Afghanistan con- Instituteastating civil war, to of the home Peace of a funda- vened a loya jirga, 2 or grand national assem- mentalist and obscurantist theocracy which bly, to revise and ratify a new constitution. thrived, in part, upon the largesse of a global The goal of this process and the document it terrorist confederation’s leaders and revenue would produce was to forge a new and lasting from the world’s largest opium crop. These political compact that would end the cycle of cleavages and the legacy of political upheaval destruction and create a foundation of rights continue to manifest themselves in the on- and institutions to support the reemergence going peace process.4 of Afghan nationhood and statehood. The attacks on the World Trade Center Finding stability in Afghanistan requires and the Pentagon on September 11, 2001, its people and political leaders to overcome marked the start of a new political situation deep divisions that led to three decades of for Afghanistan. A U.S.-led military cam- war and political turmoil.3 There are numer- paign in the country led to the collapse of the ous cleavages in Afghan society, including Taliban regime that had provided safe haven

535 536 J Alexander Thier

to al Qaeda’s leaders, the entry of Northern constitution-making process. A combina- Alliance forces into Kabul, and eventually tion of secrecy, haste, insecurity, and intimi- a transitional accord, the Bonn Agreement, dation made the process inaccessible to the signed in Bonn, Germany, in December public and also limited open, honest debate. 2001.5 The political transition process that is The United States and United Nations could still underway presents a great challenge and have fostered an environment of democratic opportunity to the people of Afghanistan. openness; instead, much of their political A key feature of the Bonn Agreement influence on the process reinforced the ten- was a timetable for the creation of a new dency of Afghan power brokers to maneuver Afghan constitution. The culmination of out of the public eye. the constitution-making process set in mo- This chapter begins by examining Afghani- tion by that agreement was the December stan’s historical experience with constitution- 2003 Constitutional Loya Jirga (CLJ).6 For making processes, focusing on Afghanistan’s twenty-one days that December, over 500 1964 constitution, which served as the basis Afghan men and women from every prov- for today’s constitution. The chapter then ince, ethnic group, social class, political af- analyzes Afghanistan’s constitution-making filiation, and religious sect fought - vigor process from 2002 to 2004 and examines the ously for their vision of Afghanistan’s future. key elements of the process—drafting the Elected leaders, human rights activists, and new constitution, consulting public opin- tribal leaders gathered in the vast white tent ion, choosing representatives for the CLJ, to negotiate compromises on power sharing, and ratifying the new constitution—as well minority rights, and the role of Islam in the as analyzing key substantive aspects of the state. Meanwhile, much of the deal making new constitution. The chapter concludes by went on among government officials, noto- evaluating the prospects for implementa- rious warlords, and foreign power brokers in tion of the 2004 constitution and assessing the small VIP tent off to the side. But unlike the contribution of the constitution-making the struggles among the Taliban, warlords, process to peace building and reconciliation drug traffickers, and international military in Afghanistan. forces still raging in many parts of the coun- ©try, theCopyright Afghans in the tents were by fighting the Endowment of over words, ideas, and amendments. By Janu- Afghan Constitutional History ary 4, 2004, after several walkouts, a majority ofthe delegates United ratified the new constitution.States7 The Institute First Eighty Years of Peace The passage of a notionally democratic Afghanistan has had both too much and too constitution was a triumph for war-ravaged little experience with constitutions in the Afghanistan. However, creating a new con- past eighty years. Since 1923, when King stitution for the country was a necessary but Amanullah promulgated Afghanistan’s first insufficient step in establishing democracy constitution, Afghanistan has had eight con- and the rule of law. Constitutions are little stitutions but little opportunity to actually more than pieces of paper without a network implement some of the fundamental aspects of institutions and cultural values to support of these documents.8 The first two constitu- them. Post-Taliban Afghanistan lacks such tions, in 1923 and 1931, were established by a network. On paper, the new constitution the monarchy after periods of turmoil—the creates a good foundation for political prog- final battle for independence from Great ress, but opportunities to build legitimacy Britain and the revolt of 1929 that deposed for the future state were missed during the King Amanullah, respectively.9 These consti- Framing the State in Times of Transition 537

tutions were created without a great deal of in each district of the country.15 This lack of public participation, although tribal leaders parties meant that there was no hierarchy of were brought together to anoint their pas- leadership in the Shura, no one to organize sage. Both constitutions kept almost all state delegates and bring them in line. Lack of or- power in the hands of the monarchy, with ganization, combined with the newness of little room for democratic representation or authority in the hands of elected representa- popular participation in public affairs. They tives, meant that the Shura struggled to ac- did include political reforms—especially the complish anything. This fragile system could 1923 constitution—but the lack of popular not withstand the intense political pressures involvement in and approval of a far-reaching and social conflict brought by the Cold War reform process initiated in 1923 is a primary and modernization, and it collapsed. reason for the 1929 uprising that caused the The end of Afghanistan’s short experiment fall of the monarch.10 with democracy came abruptly in 1973, when In 1963, after over thirty years of relative Mohammad Daoud, who had stepped aside stability and slow but steady economic and in 1963, took power by a coup.16 The 1964 political development, King Zahir Shah, who constitution was suspended, and Afghanistan had been on the throne for three decades, was declared a republic. A new constitution called for the drafting of a new constitution.11 was prepared without wide consultation and The preceding period of economic and social promulgated in 1977. By this time, however, modernization, led by the prime minister and the government was in turmoil, and Daoud first cousin to the king, Mohammad Daoud, was overthrown in 1978 by a communist-led set the stage for political modernization in coup.17 The constitution was once again sus- 1963, when Daoud stepped down amid a po- pended, and a new constitution was put in litical crisis with Pakistan. The king, retaking place in 1980 by Babrak Karmal, whom the the reins of power, mandated a constitutional Soviets installed upon their invasion in late process that would significantly alter Afghan- 1979.18 A brutal war ensued during the So- istan’s political system. The resulting constitu- viet occupation, pitting an unpopular dicta- tion, which introduced a far greater degree of torship and the Soviet military against rebel democratic participation, was drafted over an mujahideen forces. In an attempt to gain le- © Copyrighteighteen-month period after by wide-ranging the Endowmentgitimacy after years of conflict, theof govern - consultations with all sectors of society.12 The ment of President Mohammad Najibullah, constitution provided for a popularly elected who succeeded Babrak Karmal, introduced theand independentUnited parliament, States elected city Instituteanother constitution ofin 1987. Peace This document councils, and provincial advisory councils. was quickly replaced in 1990 after the So- Once this constitution was ratified by a loya viet withdrawal. In both the 1987 and 1990 jirga in 1964, the era known as the new de- processes, Najibullah convened loya jirgas of mocracy began.13 Two parliamentary elec- party loyalists to give the new documents the tions were held, and the country began to patina of widespread support and reliance experience democratic government.14 on traditional Afghan political mechanisms. Between 1965 and 1973, however, the The Najibullah government then collapsed Afghan parliament, or Shura, suffered from in early 1992, and the interim mujahideen inaction and deadlock. Although the new government proposed a new constitution. constitution allowed for the eventual cre- However, fighting quickly broke out among ation of political parties, the law authoriz- the elements of the government in 1992, and ing them was never passed, and so individual the ensuing civil war destroyed the capital Shura members were elected independently and the government. Afghanistan effectively 538 J Alexander Thier

broke into fiefdoms during this period, each constitution was intended to move Afghani- ruled by clutches of competing warlords and stan into an era of greater citizen participa- commanders. The Taliban arose amidst the tion and more representative and account- chaos of this failed state, slowly consolidating able government. As the creation of the 2004 their hold on different regions: the west in constitution followed the 1963–64 constitu- 1995, Kabul and the east in 1996, and much tional process quite closely in both substance of the north by 1998. The Taliban govern- and process, the key points of the latter are ment did not create a new constitution per worth examining briefly here. se, but did pass numerous laws and edicts Upon retaking the reins of power in 1963, concerning the structure of government and King Zahir Shah set out to modernize and rights and duties of citizens.19 democratize Afghanistan’s political and le- Overall, Afghanistan’s record of legitimate gal system. He appointed a seven-man con- constitution making and implementation is stitutional drafting committee, comprised weak. The 1964 process was in many ways a of known reformers. For nearly a year, this model for its time, but a destabilizing back- committee met daily, developing and revis- drop of domestic intransigence and geopo- ing a draft document and seeking opinions litical competition obstructed the deep social from a wide range of Afghans and foreign- and political changes the process was meant ers.22 Following the input of a French adviser to catalyze. A constitution itself is but a piece who the king had invited to Afghanistan, a of paper, reflecting decisions made by the po- joke circulated in the capital about the sta- litical leadership. If that leadership does not bility of the French model, with its fifteen have the power or the desire to implement constitutions since 1789.23 the basic law, as has generally been the case in The committee presented its draft to the Afghanistan, then the constitution has little king in February 1964, and the king ap- meaning. Afghans were promised many ba- pointed a twenty-nine-member constitu- sic rights in their constitutions—freedom of tional advisory commission to review the speech, freedom of assembly, freedom from draft and make additional suggestions prior torture, freedom from discrimination—but to the convening of the loya jirga that would when those freedoms were violated, the ratify the constitution.24 This advisory body ©courts Copyright and police did not enforce by them orthe broadened Endowment the political and ethnic represen of- punish the transgressors.20 At the same time, tation in the drafting process and included when important changes are introduced, they two women.25 The advisory body met with requirethe both United some popular support States and some the Institute drafting commission overof a two-monthPeace time to take root. The legislators elected in period to hash through some of the most 1965 played politics like buzkashi,21 unable difficult questions in the draft, including the to act cohesively with allies and unwill- role of the king and the royal family in the ing to make short-term sacrifices for long- political system.26 The details of the revised term gains. The political representatives may draft approved by the constitutional advisory have been able to work out these problems commission were made public and dissemi- through practice, but they were not given the nated widely through government-controlled opportunity. radio and print media.27 In the spring of 1964, the king issued a decree that called for a loya jirga to ratify the The 1964 Constitution constitution and defined the composition of The 1964 constitution is the touchstone for the body, including the parliament, the Su- the birth of democracy in Afghanistan. This preme Court, the members of the constitu- Framing the State in Times of Transition 539

tional commissions, and another 210 mem- and dissolution of the cabinet.35 In practice, bers to be selected by indirect elections and the prime minister was responsible for the appointed by the king.28 Although the exist- daily operation of the government, and the ing parliament and the body of electors for king did not abuse his considerable constitu- indirect elections in no way represented uni- tional powers. However, keeping these pow- versal suffrage, the outcome of this selection ers in the hands of one unelected official did process produced a body with a broad range not help to introduce a political culture in the of social, religious, ethnic, cultural, and po- country that respected peaceful and consti- litical diversity. Only 6 of the 452 delegates tutional transfer of power from one leader were women, but their inclusion was seen as to another. The Afghan state under the 1964 progressive at the time for Afghanistan.29 constitution was completely centralized,36 On September 9, 1964, the king made with all subdivisions of the state (provinces the opening address to the assembled loya and districts) merely administrative in na- jirga, laying the responsibility for guiding the ture; provincial governors were appointed by future of the republic at their feet, and de- the minister of the interior. parted.30 The debate in the loya jirga proved The role of the parliament—the Shura—in far more in-depth than observers expected, Afghanistan was strengthened in the 1964 producing wide-ranging discussions on con- constitution as the preeminent law-making troversial issues. Opposition on certain issues and representational body. The Shura was ac- was well informed, and written dissents were knowledged in the constitution as manifesting submitted during the debate, making this the “will of the people.”37 The 1964 constitu- Afghanistan’s first “literate Loya Jirga.”31 In tion envisioned a bicameral legislature with a the course of debate, the king personally met directly elected lower house of 214 members, with some of the dissenters, mostly conserva- the Wolesi Jirga (House of the People), and a tives who objected to what they perceived as smaller upper house of 84 members, the Me- the secular nature of many of the articles.32 In shrano Jirga (House of Elders).38 The two- the end, the loya jirga debated and passed 128 house structure was a way of allowing people articles in eleven days, making few significant to vote for geographic representation while substantive changes to the original draft, but providing for representation of Afghanistan’s © Copyrightengendering a feeling of participationby the and Endowmentdiversity. Due to the model’s extremely of short ownership among the delegates.33 trial period, the modalities of power sharing The 1964 constitution wrought several between the two houses of the legislature theconsiderable United substantive changesStates in the Af- Instituteand between the executive of andPeace the legislature ghan political and legal system, including the were never fully explored.39 role of the monarchy, the parliament, and loya For the first time, the 1964 constitution jirga; the creation of a unified and indepen- also institutionalized the loya jirga40; well dent judiciary; and the role of Islam in the known in Afghan history as an ad hoc body legal system. First, the 1964 constitution pro- that brings together the nation for criti- vided for a constitutional monarchy, whereby cal decisions in times of crisis or political the king had ultimate executive authority, transition, it was given a formal place in the such as the power to declare war, sign treaties, structure of government. Under the 1964 and dissolve parliament.34 The prime minis- constitution, the loya jirga was composed of ter administered the executive authority. The both houses of the legislature as well as the parliament had broad legislative and execu- chairmen of each provincial assembly.41 It tive oversight powers concerning the budget, was something of a superparliament, capable the ratification of treaties, and the approval of standing in for a government dissolved by 540 J Alexander Thier

the king and required to be formed to con- not covered by any state law, judges were to sider amendments to the constitution.42 apply the basic principles of jurisprudence The creation of a unified and indepen- of the Hanafi school of sharia, in accordance dent judiciary was one of the most signifi- with the limitations of the constitution.48 cant changes embodied in the 1964 constitu- This system allowed the elected representa- tion.43 Previously, the judiciary had been tives of the people to decide how to ensure divided between sharia courts, which were that the laws of Afghanistan accorded with dominated by clerics, and state courts, which the principles of Islam, and as the parliament handled issues related to civil servants and adopted comprehensive legal codes, the need government-owned lands. For the first time for judges to apply their own private Islamic in Afghan history, unified government courts legal interpretations became less necessary had jurisdiction over all subject matter. This or acceptable. Removing religiously justified unified judiciary was to be a fully indepen- legal discretion from clerics had been one of dent and coequal branch of government, the chief motivations of the constitution’s with the Supreme Court the highest judicial founding reformers, and through these mea- authority in the country.44 The judiciary was sures, they achieved their goal. charged with applying the laws and constitu- tion of Afghanistan, and the court’s jurisdic- tion was broadly worded, explicitly including The Constitution-Making Process litigation brought against the state.45 The of 2002–04 state was required to enforce all judgments, The overall framework for Afghanistan’s and the supremacy of the constitution and post-Taliban political transition, including the laws of Afghanistan were made clear. interim government and legal arrangements In reality, Afghanistan’s judiciary, in the and a timetable for constitution making, short time it had, achieved neither indepen- was agreed at a meeting among the main dence nor coherence. The judiciary faced four Afghan factions and international actors in primary obstacles in its development. First, Bonn, Germany, at the end of 2001. The sub- there were far too few qualified judges and sequent process of creating a new constitu- lawyers to ensure the fair and even application tion consisted of four distinct aspects: draft- ©of the Copyright law.46 Second, local traditional by prac the- ing theEndowment new constitution, conducting a publicof tices for resolving disputes were entrenched, consultation process, choosing the represen- leaving little room for formal judicial power. tatives of the CLJ, and ratifying the new con- Inthe many cases,United this meant that Statesjudges either stitution Institute at the CLJ. These of several Peace structural supported the local practices, even when the elements of the process are discussed below. practices were at odds with the law, or the judges became irrelevant. The third obstacle to independence was the preeminence of The Bonn Agreement the king and the prime minister. The fourth A scramble to organize Afghanistan’s post- obstacle was that the judiciary was made up Taliban political leadership accompanied the principally of clerics who opposed the state’s fast-moving military campaign in the late consolidation of the courts. months of 2001. Despite widespread insis- Finally, under the 1964 constitution, Islam tence on a broadly representative transitional was the state religion, and all laws the parlia- process given the polarizing civil war of the ment passed were required not to contradict 1990s, the militia groups comprising the the basic principles of Islam.47 In those cases Northern Alliance were already dominating Framing the State in Times of Transition 541

the political and security landscape, occu- however, arguing that they would provide se- pying Afghanistan’s seat at the United Na- curity themselves. tions, and occupying Afghanistan’s capital, As the noose began to close on the Tali- Kabul, by November 2001. To help facilitate ban in their home base of Kandahar, the in- the process of forming a transitional gov- tense diplomacy of the United Nations and ernment, UN secretary-general Kofi Annan United States persuaded key Afghan parties reappointed Lakhdar Brahimi as his special to meet to name an interim administration representative to Afghanistan on October and chart the future political transition. The 3, 2001. Brahimi had served as special rep- meeting began in Bonn on November 27 and resentative of the secretary-general (SRSG) included representatives of four main Afghan to Afghanistan from 1997 to 1999 and was groupings: the Northern Alliance; the Rome intimately familiar with the country’s politics Group, composed of family and supporters of and players. the former king; the Peshawar Group, com- Representatives of the Northern Alliance prising Pushtun mujahideen, tribal, and reli- and the former Afghan king held talks in gious leaders based in Pakistan; and the Cy- Rome during this period, and on October 1, prus Group, a mixture of factions with close 2001, agreed to form a supreme council of ties to Iran. Numerous Afghan civil-society national unity of Afghanistan. This council groups from inside and outside the country was supposed to meet to agree on convening felt that these factions did not represent the a loya jirga to choose a new government. Afghan people, and the Bonn Agreement it- One critical faction, the non-Taliban Pushtun self acknowledges in its preamble that many mujahideen, felt excluded from this agree- groups were not “adequately represented” at ment and held a gathering of 1,500 Pushtun the talks. Concerned Afghans outside the tribal and religious leaders on October 24–25 process organized a civil-society forum that to call for a loya jirga to establish the next took place near Bonn, in tandem with the government. political negotiations, to inject alternative Events on the ground, however, quickly voices into the process. overtook the negotiations. The day after Kabul The official Bonn meeting initially evoked fell into the hands of the Northern Alliance, the failed peace talks held from 1992 to © Copyrightthe UN Security Council passed by Resolution the Endowment1994 in places like Islamabad, Pakistan, of and 1378, affirming the United Nations’ central Ashkabad, Turkmenistan. Many of the same role in supporting political transition efforts representatives had come together in that theand callingUnited for a new government States that would Instituteperiod with UN mediation, of Peace inking flowery be “broad-based, multi-ethnic and fully rep- agreements, and swearing on Korans to abide resentative of all the Afghan people.”49 The by them. Each of these efforts had dissolved resolution also encouraged member states to almost instantly. In his opening remarks in ensure the safety and security of the capital Bonn, Lakhdar Brahimi, the conference and an eventual transitional authority. This chairman, warned the delegates that “you final appeal reflected a desire on the part of must not allow the mistakes of the past to be many Afghans and their international sup- repeated, particularly those of 1992.”51 The porters to create an international security situation in Afghanistan was quite differ- force that could provide the essential politi- ent in 2001, however, and the international cal space needed in Kabul to create a broad- players with the power to twist arms to make based government.50 The Northern Alliance agreements and keep them on track were quickly rejected proposals for a security force, again interested in the country, having seen 542 J Alexander Thier

what international abandonment of Afghan- process. The state-building process would be istan in the 1990s had wrought. the vehicle for reconstruction, forming long- The Agreement on Provisional Arrange- term security arrangements, and developing ments in Afghanistan Pending the Re- national unity. The peace process would aim Establishment of Permanent Government to achieve order among the factions, allowing Institutions, otherwise known as the Bonn them to lessen their enmity while acknowl- Agreement, was signed on December 5, edging, if implicitly, their de facto control of 2001. In the end, the Bonn talks were domi- the country. The Bonn Agreement envisioned nated by the Panjshiri Tajik faction of the that the state and political processes, such as Northern Alliance, the Shura-i-Nizar. With a constitutional process and elections, would undisputed control of the capital, the stron- slowly draw sovereign authority back to the gest military, and a strong battlefield alli- government and people, and diminish the ance with the United States, they could suc- rule of the gun. cessfully insist on key positions in the new As part of the state-building process, the government. In exchange, they agreed to a Bonn Agreement provided for the drafting relatively unaffiliated Pushtun tribal leader, of a new constitution, to be approved by the Hamid Karzai, as head of the interim ad- CLJ, which would convene just two years af- ministration; a limited international security ter Bonn.52 Until the adoption of a new con- force in Kabul; and a transition process that stitution, the 1964 constitution would be in would lead to the creation of a new constitu- force, but without a king or legislature, thus tion and elections in just thirty months. excluding a substantial portion of the mean- The scope and timetable of the Bonn ingful provisions of that instrument.53 The Agreement were very ambitious. The agree- Bonn Agreement also allowed for the opera- ment laid out the powers of an interim au- tion of existing laws that did not contradict thority, which would be replaced by a transi- the provisions of the agreement or the 1964 tional government selected by an Emergency constitution. While sensible, this provision Loya Jirga within six months. These succes- was practically unenforceable, due to both sive administrations were to be responsible the enormous number of laws created by for shepherding the reconstruction process multiple, mutually antithetical regimes over ©and unifyingCopyright Afghanistan’s political by and mil the- thirty Endowment years and a general inability to enforce of itary institutions. The agreement, however, laws throughout the country. However, the did not detail how and when disarmament chairman of the interim and transitional ad- andthe integration United of military forces States must oc- ministrations Institute was given theof power Peace to make cur, or what the powers of the Emergency law by decree with the agreement of his Loya Jirga should be. Nor did it clearly lay cabinet, which simplified the resolution of out or guarantee penalties for transgressions. pressing legal issues.54 The lack of detail was understandable in an The final critical aspect of the Bonn agreement produced in a short time under Agreement was the selection of the interim intense pressure. The agreement represented cabinet. In Afghanistan, confidence in peace- a decision to push difficult questions into the ful transitions of power was understandably transition process, rather than resolve them low, and thus, the composition of the interim up front; it established a series of milestones administration also defined, to many, the fu- to which the parties could eventually be held ture composition of the Afghan government. when the time was ripe. Thus, the Bonn The division of posts was widely viewed to be Agreement set two simultaneous processes in extremely lopsided, with the Panjshiri fac- motion: a state-building process and a peace tion of the Northern Alliance claiming the Framing the State in Times of Transition 543

three most powerful ministerial posts: de- of the Nation during the Emergency Loya fense, interior, and foreign affairs. The selec- Jirga in June 2002, officially inaugurated the tion of Hamid Karzai, head of the Pushtun drafting commission in November 2002. The Popalzai tribe, as chairman, and the agree- commission struggled to compose itself, as it ment to allow the return of the former king, lacked organization and a competent secre- were attempts to reduce Pushtun alienation tariat, and suffered from considerable rancor from the interim administration. The poten- among its members. This discord emerged tial power of the chairman and that of the from a mixture of tension over control of the former king were far less concrete, however, commission’s work and the draft of the con- than the very real power that the Northern stitution, and political disagreement about Alliance Panjshiri triumvirate exerted over the roles of Islam and the king in the new Kabul and Afghanistan’s foreign relations. draft. Not only the less well represented non– The United Nations Assistance Mission Northern Alliance groups complained that for Afghanistan (UNAMA), which bore pri- “injustices have been committed in the dis- mary responsibility among international ac- tribution of ministries,”55 powerful members tors for aiding the commission, failed to direct of the Northern Alliance, such as Rashid sufficient resources toward the commission Dostum and Ismael Khan, decried the out- for months.62 Six months after Karzai’s de- come as unfair and even humiliating.56 This cree, the commission was in disarray, and sense of exclusion would undermine support virtually no progress had been made on pro- for the transitional administration and fo- ducing a decent draft of the constitution, or ment widespread discontent. canvassing the political aims of the powerful or the population. Instead, the commission

57 had broken into two camps, each creating a Drafting a New Constitution different draft. While these drafts had some Hamid Karzai, president of the Afghan substantive differences along liberal versus transitional administration (ATA) anointed conservative lines, the primary disagreement by the Emergency Loya Jirga, appointed a was over the perceived exclusion of several nine-member constitutional drafting com- commission members from the drafting pro- © Copyrightmission by decree on October by 5, 2002. the58 The Endowmentcess, which remained largely in the of hands of commission was chaired by Vice-President Professor Azimi. Meanwhile, a French ad- Niamatullah Shahrani, an ethnic Uzbek and viser, Guy Carcassone, provided to Karzai thereligious United scholar from Badakhshan States province. Instituteby the French government, of Peacecreated another Shahrani’s deputy was Professor Abdul Sa- separate draft. Other foreign advisers pro- lam Azimi, former rector of Kabul University vided by the United States, the United Na- and a professor of the sharia faculty there.59 tions, and the Swiss government made trips Shahrani had been Azimi’s student and they to visit with the commission members to shared a close bond.60 The remaining mem- discuss various aspects of the constitution.63 bers were mostly lawyers and legal scholars, These three drafts were the subject of rumor including two women, none of whom were and confusion, compounded by the govern- powerful players in political or military af- ment’s failure to release the eventual draft fairs.61 Although most of the members had constitution produced by the commission. a legal background in secular or religious law, With the prospect of another national none was a constitutional expert per se. loya jirga looming, serious international The ailing former king, Zahir Shah, who pressure was placed on both the ATA and had been given the honorific title of Father UNAMA to move the process forward. On 544 J Alexander Thier

March 10, 2003, the secretariat of the con- constitutional commission offices. This sub- stitutional drafting commission released a stantive foreign technical advice had a mean- document, The Constitution Making Process ingful impact on narrow issues, but did not in Afghanistan, outlining the proposed ac- ultimately shape decisions on the most sig- tivities and timeline of a new, larger consti- nificant questions. The real foreign influence tutional commission that would undertake a was not channeled through legal experts, but public consultation process, amend the draft directly exerted by high-level diplomats upon constitution produced by the drafting com- the palace and other influential leaders. mission, and prepare for the CLJ to ratify the Concerns about the appearance of foreign document. interference did not, however, extend to for- The drafting commission conducted an eign support for designing the procedural intensive series of meetings in March. Chair- aspects of the constitution-making process, man Shahrani submitted a draft constitution including the public consultation process to President Karzai in early April, intended as well as the elections and rules of proce- to serve “as a set of recommendations . . . on dure for the CLJ. The U.S. Agency for In- constitutional arrangements” to the full con- ternational Development (USAID) funded stitutional commission.64 This draft constitu- the Asia Foundation to provide foreign ex- tion was largely based on the 1964 constitu- perts and support staff, managed through tion, but had not been subjected to a careful UNAMA, to work with the constitutional technical review. As a result, certain aspects commission secretariat on these issues. The of the document lacked internal coherence, staff was responsible for staging the delegate or were simply unclear. elections, conducting public outreach, orga- The Karzai government appointed a new nizing the CLJ, and drafting many of the key constitutional commission on April 26, con- documents involved, including the rules of sisting of thirty-five members from a broader procedure. political and ethnic spectrum and including Following a public consultation process six members of the drafting commission.65 during June and July (discussed below), the The membership of this new body was a mix constitutional commission had one month— of politicians and experts. The decree estab- August 2003—to agree to changes to the ©lishing Copyright the new commission outlined by a pub the- draft Endowment constitution. They divided up into of sev- lic consultation process, and determined that eral committees, breaking down chapters of the CLJ would be held in October 2003. the constitution for different committees to theThe new United commission received States much more consider. Institute The commission’s of work Peacetook longer support from the United Nations and other than the allotted month, and the enormous international sources, and it extensively re- logistical undertaking required for the dele- worked the draft constitution, following gate selection process caused the government both a public consultation process as well as to delay the CLJ from October to December. more input from foreign experts. The consti- Several issues were the subject of intensive tutional commission was somewhat wary of debate within the constitutional commission, the substantive input from foreign experts, such as the choice between a presidential fearing the appearance of foreign influence and a parliamentary system of government, on a critical aspect of Afghanistan’s politi- the designation of national and official lan- cal development. This meant that many of guages, and the question of whether there the most intensive substantive discussions should be a constitutional court. The views of involving foreign advisers happened in low- President Karzai and his inner circle were not key gatherings, often outside the walls of the yet clearly known on many of these issues, Framing the State in Times of Transition 545

and so some critical political information diverse views and allow for popular political was missing from the commission’s delibera- participation. Such a process, it was argued, tions. Eventually, the commission’s commit- would be perceived as more legitimate when tees came together, and the entire draft was interested parties felt that they had their say, discussed and voted on in plenary. even if there were tight controls on the out- The constitutional commission did not come of the debate. Others in government deliver the draft constitution to President and the international community argued, Karzai until late September 2003. At this however, that stoking confrontational issues point, it was expected that the draft docu- through public debate could be destabilizing ment would be released to the public to al- or undermine progress in resolving sensi- low for a few months of debate and scrutiny tive issues. There was a perception that open before the CLJ convened. However, the con- discussion of a few controversial issues, such stitutional commission’s independence had as the role of Islam, could cause moderate never been clarified, and the presidential forces to lose ground on a host of other mat- palace took control of the draft, preventing ters. This camp preferred to keep debate on its publication and undertaking an execu- controversial issues out of the public sphere. tive review. Anxious to secure greater power The latter view was held in particular by Jean for President Karzai and limit the possibil- Arnault, deputy special representative of the ity of alternative power centers, members of secretary-general and head of the political Karzai’s cabinet and national security coun- pillar in UNAMA.67 cil redrafted key aspects of the constitution. Ultimately, a middle-of-the-road ap- The most significant modifications were the proach was taken. Although the constitu- change in government from a semipresiden- tional commission refused to release a draft tial system, which was designed to promote of the constitution for public debate, a public ethnic power sharing, to a presidential sys- education and consultation process was con- tem, as well as the elimination of a constitu- ducted for two months starting in June. Eight tional court. Both changes reflected a desire regional offices in Afghanistan and two each to narrow government control, which was in in Pakistan and Iran were opened by the con- line with Karzai’s wish to wield power effec- stitutional commission secretariat to support © Copyrighttively, and with the interest by of the internathe- Endowmentthis process. Members of the constitutional of tional community and the United States in commission traveled to provincial capitals particular in limiting the number of key in- and refugee populations in Iran and Pakistan, theterlocutors United in the Afghan States government. De- Instituteholding meetings with of preselected Peace groups of spite growing public outcry at delays and a community leaders, religious leaders, women, secretive process,66 President Karzai did not businessmen, academics, and professionals.68 release the draft constitution until Novem- These meetings, as well as questionnaires ber 3, just five weeks before the CLJ. that were circulated to the general public through newspapers and an outreach cam- paign, generally kept discussions to vague The Public Consultation Process principles rather than eliciting concrete views From the very beginning, there were compet- on key questions. The meetings throughout ing views about whether the constitutional the country were useful, however, in exposing process should be opened to public debate the Kabul and foreign-based Afghan elite and wide participation within Afghan society. on the constitutional commission to the opin- Some argued that the constitutional process ions of Afghans around the country. Several had to be broadly inclusive to incorporate of the commission members reported ben- 546 J Alexander Thier

efiting from these meetings, which demon- commission and UNAMA had been reluc- strated a greater appetite for accommodation tant from the start to engage in a meaningful and tolerance among the population than public debate, as each felt it would compro- that which existed in elite political circles in mise their agenda and interfere with their ef- Kabul.69 forts to arrive at an elite compromise among The constitutional commission also en- existing power holders. The eventual public gaged in a public information effort that consultation process and its effectiveness re- included television, radio, and print distri- flected, and suffered from, this unease. bution of materials explaining the consti- tutional process and the Bonn Agreement, focusing on issues such as how a constitution Delegate Selection could protect rights and prevent abuses of On July 15, 2003, a presidential decree was power. Independent civil-society networks issued outlining the composition and selec- held training sessions and consultations with tion process for the CLJ. There would be 500 a broad array of Afghans in an effort to con- delegates to the CLJ, as follows: 344 elected tribute to the process from the outside.70 at the district level; 64 women elected by Ultimately, tens of thousands of comments women at the provincial level; 42 delegates from the public were received and logged by elected from refugee, internally displaced per- the commission staff. son (IDP), and minority communities; and In the end, the public education and con- 50 people (25 men, 25 women) appointed by sultation process did more to advertise the President Karzai.73 The composition of the process to the Afghan people and give the body and the method of delegate selection illusion of inclusion than to actually provide were remarkably similar to the constitutional effective avenues for public input to the pro- loya jirga called by King Zahir Shah in 1964.74 cess. Most Afghans knew that a constitu- Due to constraints imposed by funding, tim- tional process was under way, but few knew ing, security, and logistics, the delegates to what the substantive issues at stake were. the CLJ elected at the district level were not Even those who submitted their opinions chosen in general elections, but rather were were unlikely to have been heard, for two chosen by the roughly 15,000 community ©reasons. Copyright First, as the results of theseby con the- representatives Endowment who had elected the deleof- sultations were being collated and analyzed gates to the Emergency Loya Jirga in 2002.75 for a report, the power play among Afghan These community representatives, compris- factionsthe regarding United the substance States of the con- ing Institute forty to sixty persons offrom eachPeace of the stitution was under way behind the scenes, approximately 360 districts in Afghanistan’s unsullied by public involvement. Second, the thirty-two provinces, had come together as a report produced by the secretariat of the con- result of an informal caucus process in 2002. stitutional commission—which detailed the Elections were held in Pakistan and Iran collection of 80,000 returned questionnaires among Afghan refugee communities, and and 6,000 additional written proposals, plus indirect elections in provinces and minority the results of 523 meetings—came too late communities were held to select women and to influence the drafting process and was not minorities. Similar to the 1964 process, the publicly distributed in advance of the CLJ, president was given about 10 percent of the despite a decree requiring publication.71 The seats to fill by appointment, to ensure that report was eventually provided to the CLJ certain groups or individuals important to delegates, who were given copies only once the process (in the government’s eyes) were the event was under way.72 The constitutional represented. Framing the State in Times of Transition 547

The elections proceeded through October due to poor leadership. With a weak chair and November without major security inci- and vague rules of procedure, a few warlords dents. Gathering the 15,000 community rep- were able to control the agenda and debate resentatives again in regional centers proved through intimidation.79 relatively easy. There were, however, reports Sebaghatullah Mojadeddi, a moderate of vote buying and intimidation in the elec- mujahideen leader with a powerful religious tion process.76 Unlike the Emergency Loya pedigree and close ties to Karzai, quickly Jirga elections in 2002, regional power bro- emerged as the front-runner for chairman kers knew what to expect from the process of the CLJ. At the same time, another can- and the importance of getting their repre- didate, Abdul Hafiz Mansoor, editor of the sentatives elected. Also, with fewer positions newspaper Voice of the Holy Warriors and available compared to the 1,500 elected to known for his fiery opposition to the Karzai the Emergency Loya Jirga, there was height- government, made a concerted bid for the ened competition for the seats. Ultimately, chairmanship. Mansoor made a speech argu- the CLJ delegate-selection process produced ing that Karzai was trying to rig the debate a highly diverse body of 502 delegates—two to ensure that he would become Afghani- were added to account for the shifting num- stan’s president. His rhetoric roused many ber of provinces—representing every prov- passions but fewer votes, and Mojadeddi ince and a wide range of views.77 won the election handily. Overall, the CLJ was a well-organized and civil affair, in contrast to its rough-and-tumble The Constitutional Loya Jirga emergency predecessor. With only one-third On the morning of December 14, 2003, the number of delegates and an emphasis on the former king of Afghanistan, the ninety- literacy in the selection process, the CLJ had year-old Zahir Shah, opened the CLJ, telling established rules of procedure (albeit often the delegates that the new constitution was flouted), a respected chair, a library, and sub- theirs to alter, improve, and approve. That the committees that undertook intensive debate. former monarch, no matter how feeble, was The scene inside the tent, however, was no endorsing a process that would almost cer- garden party. Among the 502 delegates were © Copyrighttainly lead to an end to Afghanistan’s by the royalty Endowmentwarlords, tribal leaders, communist ofpoets, and was significant. President Karzai then made mullahs, many of whom had limited formal a speech introducing his draft constitution education and had never read a constitution theand exhortingUnited the delegates States to approve the Institutebefore. The constitution of Peace had already been presidential system he envisioned. Due to drafted for them by the unelected constitu- existing divisions, Karzai warned that “Af- tional commission, and the delegates would ghanistan needs one source of power in only have two to three weeks to debate and government.”78 Karzai also threatened that ratify it. This whole scene played out against he would not run for election unless his pro- a backdrop of foreign military domination posed system was approved. and an ongoing war in the countryside. The CLJ’s first task, to elect a leadership, In the first days of the CLJ, the tent was critical, as debate needed both to flour- pulsed with excitement. There were mean- ish and be controlled. Since there was no dering floor speeches about the conditions in formal party hierarchy among the delegates, home provinces while the delegates met old most representatives considered themselves friends, read the draft constitution, and began and their voices to be equal. The Emergency to adopt positions. The commission secretar- Loya Jirga in 2002 had been a disaster in part iat finished the rules of procedure just days 548 J Alexander Thier

before the meeting began, and no one really both among ethnic and political factions in knew what the course of the debate would Kabul and between Kabul and the regions. be. The rules—thirty-seven dense articles of The outcome of this struggle could define parliamentary procedure—had been passed politics for generations. An attempt to rally by presidential decree and gave tremendous support for the government draft and strong- authority to the CLJ chairman to control the arm the opposition delayed the start of the debate, order of speakers, and other aspects CLJ, but to little effect. of the process.80 Karzai’s people and repre- On the third morning of the CLJ, a burst sentatives of the international community of rockets pounded Kabul in the early morn- were openly saying that they expected the ing. Although they landed far from the tent, new constitution to be ratified within seven they were a stark reminder that the loya jirga to ten days. But with 160 articles, a proposed was proceeding in a country still very much new system of government, and 500-plus at war. As delegates geared up for the de- opinions in the tent, these expectations were bate, the entity responsible for running the misguided. Even if every delegate spoke only CLJ, the CLJ Secretariat, headed by Farooq once, it would mean weeks of debate. Wardak, divulged the proposed format for Outside input had been limited during the proceedings. The delegates would be bro- the secretive drafting phase of the constitu- ken up into ten subcommittees, each of which tion, and many of the delegates were geared would debate the entire draft constitution. up for a full hearing. Some had ridden a don- These subcommittees would elect represen- key for days through snow-covered passes to tatives to a central committee, the reconcili- be present. Others had risked murder by the ation council, which would debate the views Taliban for their participation. They had not of the subcommittees and agree upon a draft come merely to smile and vote for the gov- by consensus. Ultimately, the draft would ernment’s plan. Prior Afghan regimes had then be put to a vote. In the best light, this made (short) careers of underestimating ru- system would allow for each delegate to have ral leaders. a say and enable an in-depth debate unlikely There was also a serious organized op- in a plenary environment. One group of del- position to Karzai’s last-minute modifica- egates, charging that this was a means for ©tions Copyright to the draft. The document by was notthe the governmentEndowment to suppress debate, wanted of the result of political consensus, and various to vote on key issues in the plenary session groups were intent on fundamentally chang- first and threatened to boycott. By creating a ingthe the structureUnited envisioned States by President hierarchy Institute with a small committee of Peace deliberat- Karzai and Zalmay Khalilzad, the powerful ing in private at the top, this approach ulti- American ambassador to Kabul who wielded mately lent itself to control by a few powerful considerable influence over him. Khalilzad, individuals. an Afghan by birth, was a protégé of Paul The resulting power gambit was anything Wolfowitz, then deputy secretary of defense; but subtle. Even though monitors and del- appeared to have the ear of U.S. Secretary of egates believed that assignment to commit- Defense Donald Rumsfeld as well; and had tees was supposed to be random, the head of played an intensive behind-the-scenes role the CLJ Secretariat agreed, at the suggestion in Afghanistan since shortly after the U.S. of a mujahideen leader, to distribute the ji- invasion in October 2001. The Afghan gov- hadi leadership (the heads of the mujahideen ernment and the U.S. embassy both wanted parties) and their supporters among the vari- power centered in a few hands in Kabul. A ous committees. The die was cast. These men diverse opposition wanted power sharing commanded their own private armies and Framing the State in Times of Transition 549

would not hesitate to use intimidation to en- The room erupted in a mixture of applause sure that their point of view dominated. and angry denunciations. In response, Ab- The subcommittee facilitators had planned dul Rasool Sayyaf, a powerful, conservative to have elections to choose the representa- mujahideen leader and militia commander, tives to the reconciliation council. These were rose to say that impugning the reputation undermined, however, by the jihadi leaders of the mujahideen, the true representatives in each committee. When former president of Islam, was criminal blasphemy. The CLJ Burhanuddin Rabbani appeared in his as- chairman, Mojadeddi, called Joya an infidel signed committee, supporters immediately and demanded that she be expelled from stood up and said that, of course, Rabbani the proceedings, adding that, anyway, as a would be chair. When it was suggested that woman, her vote only counted for half of a a vote be held, one man asked, “Who would man’s. She received numerous death threats dare oppose the great jihadi leader Presi- that day and had to remain under UN pro- dent Rabbani?” In that small group, no one tection for the remainder of the convention, would.81 entering the tent with UN security guards. The situation heightened the already deep On several occasions Mojadeddi ignored tension in the tent. Many mujahideen viewed the rules of procedure to dispense with issues Afghanistan’s urban elites as communists or viewpoints with which he disagreed. At and infidels, people divided from their own one point, delegates collected more than 150 culture and traditions; they blamed them for signatures for an amendment to remove the bringing the Soviets into Afghanistan, killing word Islamic from the proposed name of the nearly one million people, and sending mil- country, Islamic Republic of Afghanistan. lions more into refugee exile. The mujahideen Although the petition accorded with the believed that their blood saved Afghanistan rules of procedure,84 the chairman, a cleric, from the communists and the Taliban. The refused to allow a vote on the amendment, royalists and “dog washers”82 who left the announcing that “people who suggest such country to live in comfort in the West, they things are infidels.”85 argued, have no right to rule now. Others, in Inside the subcommittees, a brave cadre turn, blamed the mujahideen for years of war, of some of Afghanistan’s most intelligent © Copyrighttheir extremism and incompetence by the for the Endowmentand active professionals facilitated of the dis- chaos that followed and then the Taliban. To cussions. These men had to ensure that the them, the jihadi leaders were warlords. warlords did not intimidate the participants theOn United the fourth day of the States CLJ, Malali Joya, Instituteand that the record wouldof bearPeace the true de- a twenty-five-year-old woman from the re- bate of the subcommittees. They made sure mote western province of Farah, brought the that delegates other than the subcommittee confrontation to a head. Taking the micro- chairmen took minutes, so that the chair re- phone during an open debate session, Joya flected rather than controlled the commit- unleashed a torrent of vitriol against the ji- tee’s message. Due to their deft and diplo- hadi leaders: matic facilitation, they managed to carry Why do you not take all these criminals to one forward a meaningful debate, enforcing rules committee so that we see what they want for that allowed power brokers to be outvoted in this nation? These were those who turned our their own subcommittees. However, despite country into the nucleus of national and interna- these safeguards, several subcommittee lead- tional wars. . . . They should be taken to national and international court. If they are forgiven by ers went into the reconciliation council at- our people, the barefooted Afghan people, our tempting to push their own agendas. At one history will never forgive them.83 point, minutes of a subcommittee meeting 550 J Alexander Thier

were brought in to counter the assertions of ment would immediately catapult Afghani- Sayyaf that his subcommittee had agreed to stan from a country where women were not a stricter version of Islamic law than, in fact, allowed to show their faces in public to a it had. country near the top of the list in women’s Many of the delegates refused to attend political participation. the subcommittee meetings, and most of the The most significant bloc of delegates to serious politicking went on outside of these emerge, however, was that of the Pushtuns. meetings. The real bargaining took place After feeling divided, disenfranchised, and in several VIP tents on the grounds of the unfairly targeted by the war on terror for CLJ. No one was in these tents more than the previous two years, Pushtuns began to the American envoy, Zalmay Khalilzad, and unite as a group behind Karzai’s agenda. The the UN envoy, Lakhdar Brahimi. These two hot-button issue of presidentialism divided men were determined to bring about an the delegates along ethnic lines, with Push- agreement within a brief period of time that tuns supporting a presidential system that would support their key Afghan allies (Pres- they believed meant Pushtun rule. In turn, ident Karzai), provide enough incentives to some Tajiks, Uzbeks, and Hazaras—but not keep opposition figures engaged in the po- a unified bloc—supported a parliamentary litical process, and stand up to international system. scrutiny on issues of human rights, women’s There were strong arguments on both rights, and democratic governance. Together, sides, backed by a good deal of self-interest they exerted a tremendous amount of pres- among the parties. Afghanistan’s fragile po- sure to complete the deliberations quickly, for litical situation suggested that the govern- two reasons. First, they were concerned that ment should be designed to maximize rep- if the debate went on for too long, consensus resentation and stability as well as reduce might unravel and the whole constitutional the tendency toward conflict and the risk of process would collapse. Second, interna- capture by illegitimate means. Power shar- tional donors were balking at contributing ing among political and ethnic groups re- more funding to keep the already costly pro- mained a critical aspect of the resolution of cess afloat. Given the strong factional inter- Afghanistan’s conflicts and the consolidation ©ests atCopyright play and President Karzai’s by relative the of peace.Endowment The attempt on President Karzai’sof weakness, the mediating roles of both Bra- life in Kandahar in September 2002 and the himi and Khalilzad were, in the end, essen- killing of three ministers between July 2002 tialthe to achieving United agreement on Statescontroversial and Institute March 2004 all too clearlyof highlightedPeace issues. This approach, however, perpetuated how any structure had to account for not only the dominance of Afghan politics by a few Afghanistan’s possible political evolution (usually armed) power holders rather than by but also the possibility of political violence. a majority of the Afghan population, or even At the same time, Afghanistan’s atomized a majority of the CLJ delegates. political system needed serious centripetal During the course of the CLJ, several forces to forge a nation and a state from the blocs of delegates formed. The eighty-nine fragments. women delegates banded together to en- The proparliamentary camp argued that a sure that women would be granted complete consociational system of government would equality in the constitution. Their unity was enshrine power sharing by creating coali- so striking that they could secure a quota of tion executives or establishing consultation sixty-eight seats in the lower house of the mechanisms among representatives of ma- parliament, or over 25 percent. This require- jor ethnic groups. There was also a concern Framing the State in Times of Transition 551

about the accountability of the president. In the end, the short-term interests in Trust in the electoral process is a fundamen- the consolidation of authority won out over tal feature underpinning a successful presi- long-term considerations of how to share dential system, because the authority of the power in a multiethnic divided society. It is executive over the government is tempered not hard to see why this choice was made. not so much by immediate obstacles—such The three sets of actors controlling the tran- as the need for legislative approval—but by sition in Afghanistan—President Karzai and the prospect of future losses at the polls. Bad his supporters, the United Nations, and the policies or bad results elicit no immediate United States—were all heavily invested in sanction, and so faith in future elections is es- Karzai, and in the case of the latter two, were sential to accountability. Given Afghans’ lim- interested in managing their relations with ited experience with electoral politics and the Afghanistan through a single trusted figure. fragility of the situation, this faith did not ex- Their interests also dovetailed with those of ist at the outset. The concentration of power a large number of delegates, whose interest in the hands of one person was also viewed as in a diverse and representative government potentially dangerous in an unstable political was somewhat curtailed by their fear of the situation, as it increased the rewards of ille- factional politics and parties that had repeat- gitimate capture of the presidency, and thus edly torn Afghanistan asunder. increased the risk of this happening. Those As the talks dragged on, the debate be- supporting a presidential system countered came more intense. Just as it seemed that that given the very atomized nature of Af- a presidential system had a strong major- ghan political organization, it was likely that ity, ethnic leaders, such as Abdul Rashid the legislature would be made up of multiple Dostum, an Uzbek leader and militia com- parties, with none gaining a clear majority. mander, made strong statements in favor of a This could slow business in a presidential parliamentary system. Collateral issues, such system and also lead to instability in a parlia- as the designation of national languages, mentary system, which would likely be led by also began to roil the debate. At night, more a fragile coalition. rockets slammed into Kabul, and a UN guest- The primary argument in favor of presi- house was bombed. Rumors abounded that © Copyrightdentialism, which resonated bybeyond Karzai’sthe Endowmentthese were not Taliban actions, butof threats supporters, was the need for a strong execu- from disgruntled warlords; however, it was tive to galvanize reconstruction and keep the not publicly known who actually perpetrated themilitary United and various armed States factions under Institutethe attacks. Meanwhile, of the PeaceUnited Nations control. The historical Afghan leaders who threatened to stop paying the bills if the CLJ are revered, such as Abdul Rahman Khan— did not conclude soon. the country’s monarch from 1880 to 1901, After the ten working committees com- credited with creating the modern Afghan pleted their review, the reconciliation com- state—are lauded for their authoritarian use mittee began meeting to produce a new draft, of state power to crush opposition and build and backroom politics started to crescendo. the state apparatus, not for their inclusive- As the jihadi leaders began to realize that ness and coalition building.86 There was also the issue of a parliamentary system was a lost a strong argument against a mixed system, cause, they set their sights on increasing the based on fears that a president and prime Islamic content of the constitution. As one minister from opposing camps would divide delegate quipped, they began to press for the the government, making it ineffectual at best addition of the word Islam into every article, and potentially igniting armed conflict.87 calling for an Islamic state, an Islamic legal 552 J Alexander Thier

system, even an Islamic economy. Members In short, the CLJ produced a thoroughly of the international diplomatic corps became Islamic constitution. References to Islam anxious, as their governments and organi- are incorporated into 14 of its 162 articles zations were concerned—perhaps above all as well as the first line of the preamble. The else—that Afghanistan not have a funda- first four articles clearly establish Islam as mentalist Islamic government. For most a fundamental political, legal, and religious Westerners, such an outcome would seem basis for the state. The constitution creates little different from the Taliban. So these an Islamic state, by, of, and for Muslims, with diplomats, including Khalilzad, Brahimi, Islam as its official religion.90 Political parties and the former UN official-turned-European cannot have programs contrary to Islam, and Union ambassador Francesc Vendrell, pri- the national education curriculum must be vately laid out what they said were the red- based, in part, on Islamic principles.91 De- lines that the constitution should not cross. spite clauses prohibiting discrimination, as The constitution could not enshrinesharia as well as accepting Afghanistan’s international the law of Afghanistan, though they could legal obligations, the president of the coun- say that Afghanistan’s laws should not be try must be Muslim. The constitution allows contrary to Islam. The jihadi leaders, exacting the practice of other religions, however, and the price of their compromise from Karzai, shows greater tolerance toward Shia Islam pushed this to its limit. than did previous constitutions.92 Afghanistan is a firmly Islamic nation: The question of who was to have the Some 99 percent of its inhabitants are power to decide whether a law was suffi- Muslim,88 the legal system is heavily influ- ciently Islamic according to the standard of enced by sharia,89 and the political identity of the constitution was a fundamental aspect of a significant portion of the political leader- the debate over Islam in the CLJ. Article 121 ship is rooted in Islam in some way. More- of the constitution appears to give this power over, Islam has had a prominent place in the squarely to the Supreme Court, by providing constitutions of Afghanistan. In the 1964 that the “Supreme Court on the request of constitution, Islam was the state religion, and the Government or the Courts shall review state religious rites were to be performed the laws, legislative decrees, international ©according Copyright to the Hanafi school by of Islamic the treaties Endowment and international covenants for theirof interpretation. The king was required to be compliance with the Constitution and pro- Muslim. The 1964 constitution also required vide their interpretation in accordance with thatthe all laws United passed by the parliamentStates not the Institute law.” Thus, the character of of thePeace Supreme contradict the basic principles of Islam. Court would be extremely important to the In the new draft, the references to Islamic outcome of the cases referred to it. At the law were strengthened during the course of time of the CLJ, the Supreme Court was the CLJ. Rather than require that no law headed by a deeply conservative cleric, Fazl could be contrary to the principles of Islam, Hady Shinwari, who proclaimed the Koran as in the 1964 constitution, the constitution as his constitution. Shinwari was an ally of as adopted by the CLJ requires that no law the conservative militia leader Sayyaf, and be contrary to the “beliefs and provisions” of his leadership of the Supreme Court created Islam. The use of provisions in particular in- the possibility that a small unelected group dicates something closer to reliance on the of fundamentalists would use the court to established Islamic sharia. This reliance on short-circuit the political process with an Is- sharia, in turn, empowers the clergy. lamic trump card. Framing the State in Times of Transition 553

The reconciliation council produced a fierce. Years of ethnic polarization had made draft of the new constitution on December these tense issues, as they went to the very 30, sixteen days into the CLJ. But once the identity of the future state and the nation. document was printed and released to the To complicate matters, the voting procedures floor, several members of the council, includ- in the CLJ were extremely confusing. Many ing former president Rabbani, charged that delegates often did not know which articles the agreed text had been altered. As Chair- they were approving in a vote. The rules of man Mojadeddi attempted to move the draft procedure were also routinely ignored. toward a vote, an uproar ensued, and the vote On January 1, nearly half of the 231 del- was scuttled. Mojadeddi and Rabbani, both egates boycotted the CLJ out of dissatisfac- leaders of jihadi parties, had an infamous tion with the process and its outcomes. It rivalry that began to affect the proceedings. seemed possible that the talks would col- Mojadeddi, recalling his claim that Rabbani lapse altogether. Brahimi and Khalilzad tried to shoot down his airplane in 1992 over went into crisis mode, convening leaders to Kabul, said that Rabbani’s efforts were “dev- find a way to save the CLJ. As one delegate ilry” intended to destroy the entire CLJ.93 noted, it would take a while for tempers The increasingly heated rhetoric came to to cool: “When an Afghan feels provoked, a head as over 100 delegates announced they even if you ask him to go to heaven with you were walking out of the proceedings. Chair- he will say no.”94 But the frustrated leaders man Mojadeddi was so incensed at the wran- pushed ahead, even with few delegates in the gling that he announced that he was quitting, tent. They called for votes on further amend- promptly left the site, and went home. He ments, which passed with a bare quorum of only agreed to return after visits by the vice representatives. president and the foreign minister. Upon re- While Khalilzad and Brahimi negotiated turning to the tent, he joked that “sometimes with the leaders of various blocs late into the the loya jirga becomes so hot it is close to night of January 3, the CLJ leadership en- burning, and sometimes it is so cold that I gaged in brinksmanship. They said that the must go home and get something warm to following day would be the last, regardless wear.” After a day of cooling tempers and of the outcome. With little hope of secur- © Copyrightarm-twisting by the government by and the inter- Endowmenting significant changes and under ofenormous national diplomats close to the process, the pressure, the boycotters gave up their final delegates returned, along with the chairman. objections and returned to the tent. The last theIn Unitedthe final heat of the Statesdebate, several other Instituteissue to be resolved of was toPeace grant language issues also erupted. In a dig at the so-called rights to people in their home provinces if neckties in Karzai’s cabinet—the returned their language was the majority language of Afghans who had been living in comfort the area. This would allow Uzbeks to speak abroad—restrictions on cabinet ministers their own language in courts and govern- holding foreign passports and even on having ment offices in their region. foreign wives were proposed. In the end, dual On the final day of the CLJ, the entire passports for ministers of the government draft document was read out in Dari and were prohibited (but not for foreign wives), Pashtu. The delegates were never given a unless the parliament explicitly approved chance for a formal ballot on the draft. The them. The debates over which languages rules of procedure were unclear on final ratifi- would be official as well as the tongue of the cation of the document, calling for “every ef- national anthem were also disconcertingly fort to adopt decisions by consensus” and fail- 554 J Alexander Thier

ing that, a majority vote.95 In the end, Chair- CLJ. They sat in the front rows, were the man Mojadeddi simply asked the delegates chairs of their subcommittees, and had ac- to stand to show their support. Most in the cess to the VIP tent where President Karzai, tent stood, and the document was considered Ambassador Khalilzad, and Brahimi himself ratified.96 Given the high level of tension in worked out political deals. the process in the final days, the sudden end and failure to call for a final ballot appeared to be an attempt to force through final ap- Conclusion proval and disband the CLJ without further Only two years after the fall of the Taliban, delay or dissent. Afghanistan’s political and military leader- In classic Afghan fashion, Mojadeddi of- ship agreed on a new constitution, establish- fered an emotional note, reciting a poem that ing the framework for the institutions of a included the words, “there is rain coming, new state. The new constitution will repre- and flowers are growing from my body.”97 sent a significant achievement if it proves to President Karzai was triumphant, but noted be more than paper. At present, however, the that the constitution and the situation in the constitution is aspirational. It seeks to create country were far from perfect. In a nod to a modern, democratic Islamic state with a his opponents, he said that the constitution strong central government, a monopoly on could be amended, noting “the constitution is the use of force, and the rule of law. not the Quran. If five or ten years down the The constitution does not reflect the po- line we find that stability improves, proper litical realities of this physically and politi- political parties emerge, and we judge that cally shattered nation. The country is replete a parliamentary system can function better, with political and military factions pulling in then a loya jirga can, at a time of our choos- different directions. There are fundamental- ing, be convened to adopt a different system ists inside and outside the tent whose visions of government.”98 For its part, the U.S. gov- for the country tend more toward theocracy ernment, seeking a triumph to balance the than democracy. There are regional power growing chaos of Iraq, lauded the constitu- brokers—the warlords and tribal leaders— tional process as a great leap forward. Am- who seek local autonomy to pursue ethnic- ©bassador Copyright Khalilzad called the document by “one the group Endowment interests and personal gain. Others of of the most enlightened constitutions in the seek control of national institutions for the Islamic world.”99 same reasons. Although these groups partici- theUN special United envoy Lakhdar BrahimiStates made pated Institute in the constitutional ofprocess, Peace it remains a speech congratulating Afghanistan on far from certain that they support the vision adopting its new constitution, but he decried of the new constitution. Then there are total the ongoing control of Afghan politics by spoilers—the terrorists and drug traffickers, armed men in his address: for whom the failure of the state is a means Fear . . . is in the heart of practically every Af- to their desired ends. ghan because there is no rule of law yet in this The constitutional process produced a clear country. The people of Afghanistan are afraid victory for President Karzai and his domestic of the guns that are held by the wrong people and international supporters. Afghanistan’s and used not to defend them and not to wage new political system is a purely presidential a jihad . . . but to frighten people, to terrorize 100 system, with a directly elected president and people, to take advantages for their own. two vice presidents, a bicameral legislature, Some of the men whose conduct Brahimi and an independent judiciary. The president was addressing had been at the center of the is both head of state and head of government, Framing the State in Times of Transition 555

and is not subject to a no-confidence vote by enforcing. If a citizen, group, or governmen- the legislature (other than by impeachment). tal body fails to obey the law, the executive The president chooses his or her own cabi- must be willing and able to enforce the law. net, subject to approval by both houses of the The court system must be willing to apply legislature. The executive is represented and the law, regardless of the power of the par- dominated by the powerful unitary figure of ties before the court—and regardless of the the president. Unfortunately, this outcome personal beliefs of judges. Simply put, all the was not achieved through popular consensus branches and their officials must be willing building—which, research during the early to submit to the rule of law and to apply it to phases of the constitution-making process others equally. suggests, was possible—but rather through Since the creation of Afghanistan’s 2004 backroom deal making.101 constitution, none of these requirements has The constitution does, however, attempt to yet been met. The executive has not had the create a meaningful separation and balance power to enforce the law throughout most of powers among the three branches of the of the country; it has been unable to control central government. In the area of lawmak- even its own officials. In early 2004, the forces ing, both the legislature and the executive of Governor Ismael Khan in Herat clashed can propose laws, which must be adopted by with a central government–appointed mili- a majority of both houses of the legislature. tary commander, and the forces of Presiden- The president can exercise a veto, which can tial Special Advisor on Security and Military be overridden by a two-thirds majority of Affairs Rashid Dostum chased a Kabul- the legislature. The Supreme Court has the appointed governor out of Faryab province.102 power to review the constitutionality of laws Ismael Khan was ultimately removed as gov- and treaties, and may interpret those laws. ernor, but was made minister of power in the The power to propose the budget lies with the Karzai cabinet. executive, but the budget must be approved For its part, the reach of the Supreme by the Wolesi Jirga, the 249-member lower Court has been extremely circumscribed, yet house of parliament. There is also give and it initially managed to abuse even its limited take with the appointments process. Cabinet authority. Only ten days after the new con­ © Copyrightofficials must be approved byby the legislature,the Endowmentstitution was ratified, the court of announced and the Wolesi Jirga can both interpellate that a video of a female singer shown on and dismiss cabinet officials, which had been Kabul TV was un-Islamic and therefore ille- thea strong United demand of those Statesopposed to a presi- Institutegal.103 This pronouncement, of Peace with no case be- dential system. One-third of the Meshrano fore the court nor any law to back the judg- Jirga, the upper house of the parliament, is ment, was itself blatantly unconstitutional. appointed by the president, and all Supreme Furthermore, the court’s decree was not en- Court justices are appointed by the president forced, demonstrating the shaky foundation with the approval of the Wolesi Jirga. The on which the new constitution rests. A new president is the commander in chief of the reform-oriented Supreme Court was empan- military and has the right to declare war with eled in 2006 following the seating of a newly the approval of the national assembly. elected parliament, which promptly rejected While there are important checks and bal- Karzai’s attempt to reappoint the fundamen- ances in this constitutional setup, a political talist former chief justice, Maulavi Fazl Hady system that withstands actual confrontation Shinwari. This new court, with its powers of among competing authorities is far harder to judicial review, has already been called upon build. Ultimately, the system must be self- to referee constitutional disputes between 556 J Alexander Thier

the executive and an opposition-controlled will be centralized or decentralized remains parliament. In 2007, the lower house of par- a key question. This issue is critical in both a liament interpreted an ambiguous provision formal sense, as it will affect decisions in the in the constitution to mean that they had the institutional design process, and in a practi- power to dismiss cabinet ministers through cal sense, as ideas of a strong central govern- a vote of no confidence and attempted to re- ment confront the reality of strong regional move the foreign minister. The president ob- autonomy created by the turmoil of the last jected to the interpretation and the manner few decades. Ethnic groups that were rela- by which the vote was taken, and referred the tively disenfranchised in the past now have question to the Supreme Court. The court autonomous militia forces, and, to a lesser ruled that the vote had indeed been prob- extent, political structures.107 lematic, annulling the minister’s dismissal, Moreover, the historical reality is that without clearly addressing the question of power in Afghanistan has almost always op- the ultimate effect of a no-confidence vote. erated through negotiation between the cen- For its part, the leadership of the lower house tral authority and local power holders; ten- claims that the Supreme Court did not have sions between these two levels have existed the jurisdiction to rule on this issue according for as long as there has been a state. Even to the constitution, and so refused to recog- the Taliban, which exerted a greater mea- nize the decision, producing a constitutional sure of central control than its immediate stalemate.104 predecessors, was forced to negotiate with Perhaps the greatest failing of the tightly local elites and accept a degree of local au- controlled constitution-making process was tonomy.108 Most of Afghanistan has always its inability to address Afghanistan’s great- been remote from the center, and the com- est challenge as a nation and a state: balanc- munications and transportation infrastruc- ing center-periphery issues. The new Afghan ture is insufficient to impose high levels of constitution creates a completely centralized central control. Strong local social organiza- state, with no political or administrative au- tion and a tradition of independence mean thority devolved to the provinces. Provincial that decisions imposed from outside are usu- governors and ministry officials stationed in ally resented locally. Distrust of central gov- ©the provincesCopyright are appointed by Kabul.by Thethe ernment Endowment is also based on the experience of of constitution does establish elected consul- authoritarianism and brutality. The years of tative bodies on the provincial and district war opened up a gap between the local and (subprovincial)the United level. However, theseStates councils the Institute central structures, with of little connectingPeace are merely limited to “securing the develop- them. Central government ceased to have ment targets of the state” and giving “advice anything to offer provinces, let alone dis- on important issues.”105 Elected mayors and tricts. Part of the political challenge will be city councils may be given more autonomous reestablishing that connection, and doing so authority, to be determined by law. in a legitimate way. The constitutional setup also could not The disconnect between the constitution be farther from the reality on the ground and the reality of the place that it is intended in Afghanistan. The territory, resources, and to govern is due to several factors. Due to even government apparatus in most prov- the sense of entropy that emerged during inces remain in the hands of regional power the civil war in the 1990s, many Afghans brokers.106 A true compromise on devolution became fearful that lack of a strong center of authority has yet to be reached, and thus, leads to chaos or rule by predatory regional the extent to which governmental authority actors, tempering popular support for regional Framing the State in Times of Transition 557

autonomy or federalism. Additionally, the tution has little such potential recourse to four most powerful parties to the constitu- tradition. The system is bounded by itself, not tional process—the Americans, the United by an outside actor or institution of higher Nations, the Karzai circle, and the Shura-i- authority. This change at once maintains the Nizar (Panjshiri) branch of the Northern Al- integrity of the system and places immense liance—all wanted a strong center in which pressure on its weakly grounded legitimacy to consolidate power. At the same time, the to overcome political crises. There is still the 1964 constitution, which also envisioned a potential under the new constitution to call completely unitary state without any devolu- a loya jirga in times of crises, but it is unclear tion, was used as the model for the first draft whether such an institutionalized loya jirga of the 2004 constitution. Finally, Afghani- can have the necessary effect. stan’s educated elite, who participated in dis- The 2004 constitution has done much proportionate numbers in the constitutional more than previous constitutions to ensure a drafting and ratification process, and many diverse parliament, and new laws have paved of whom had been outside Afghanistan since the way for political parties to form and op- the 1970s, carried an outdated vision of the erate. The election law, however, does not Afghan state at the height of its power. As allow for party lists in the context of elec- a result, there was little public debate about tioneering, and so the first parliament was the prospects for such a high degree of cen- elected without a strong party structure to tralization, and local voices were neither well ensure discipline in the people’s house. The organized nor heard. 2004 constitution also does much more than The test of the new constitution, as with previous constitutions for Afghan diversity as any law, will be in its implementation. Doz- a whole, recognizing major languages other ens of new laws and regulations will have to than Dari and Pashto and allowing for mi- be put into place. Institutions, such as the nority Shiite jurisprudence to be used in the courts, the police, the ministry of justice, and courts in cases brought by Shia. It has also the office of the prosecutor general, must be guaranteed a substantial portion of seats to built, virtually from the ground up, and fur- women in the parliament, which already has nished with the fiscal and political resources added many more Afghan women to visible © Copyrightto do their work. But the governmentby the must Endowmentpolitical life than ever before. of not only be built, but made credible and le- The vague yet powerful references to Is- gitimate in the eyes of a wary population. lam and the legal system of the country in theThis United process is time States and resource intensive Institutethe 2004 constitution of leave Peace some cause for and will be more easily undermined than ac- concern. In the wrong hands, the language complished in the next few years. ensuring that laws must adhere to the “be- The extent to which the stabilization and liefs and provisions” of Islam potentially state-building mission in Afghanistan de- takes away an important degree of discretion pend upon the provisions of the new con- from Afghan’s elected leaders and lawmakers stitution remains to be seen. The 1964 con- and places it into the hands of those wield- stitution was to be a serious revamping of ing clerical authority. This grant of power to the Afghan political system, and ultimately the politically unaccountable threatens the failed due to internal and external pressures. democratic system and individual rights in a It attempted to ease the way toward democ- country that has decades of struggle ahead of racy by limiting the powers of the king and it to consolidate the rule of law. his family, but left them in place as a check Ultimately, the new Afghan constitution on the developing system. The 2004 consti- was borne of haste. The rushed Bonn process 558 J Alexander Thier

laid out in a few days Afghanistan’s transition tution can be a high-stakes game, defining on a tight timetable. Before the country was future winners and losers through structural even nominally secured, it was agreed that a means. In Afghanistan, a presidential sys- new constitution would be drafted, publicly tem likely means a Pushtun president for the vetted, and ratified within two years—fol- foreseeable future. Lack of clear elite consen- lowing twenty-five years of devastation and sus on the future, and deep lingering distrust disintegration. This timetable was largely between political and ethnic groups, made imposed upon the disjointed Afghan fac- the CLJ a risky venture. It almost unraveled tions by the United States, the United Na- entirely during the process, and only intense tions, and other international actors leading international pressure kept it from doing so. the intervention, to ensure that the process This pressure forced an outcome, but not a would stay on track and that an exit strategy consensus, while also laying bare the hand would remain in sight. of foreign intervention in a delicate process The combination of haste, lack of mean- and heightening the perception that Karzai’s ingful public debate, and outcomes at odds power flows from the Potomac rather than with powerful entrenched interests means the Kabul or Helmand rivers. that the constitution will have to overcome Ultimately, the governmental structure strong challenges to its legitimacy. A weak that the constitution created is cognizable to center that devolves no political authority most Afghans. But whether it will function, will end up being defied by local de facto and overcome the struggles ahead, is far from political authority not recognized within assured. The most important lesson from the the constitutional framework. Additionally, 1964 process, perhaps, is that the spirit of the there are early signs that the factions sup- document needs to be obeyed by those with porting a parliamentary system will con- the power to disobey it. tinue to push that the constitution should be revised.109 It remains unclear whether the consti- Notes tutional process of 2003 contributed to the 1. I would like to thank the constitutional and goal of peacemaking and national reconcili­ judicial reform commissions of Afghanistan, in ©ation—or Copyright at least whether it could by have been the particular Endowment Chief Justice Azimi, Justice Bahauddin of more effective in doing so. On one hand, the Baha, and Ms. Fatema Gailani, for their extensive insights. I would also like to thank Toluwanimi public spectacle of former enemies sitting in Fadeyi for her research assistance. Portions of this the same tentUnited and producing anStates agreement chapter Institute were previously published of in Peace J Alexander (albeit with misgivings) strikes a dramatic Thier, “The Making of a Constitution in Afghani- contrast with the fratricidal conflict of the stan,” New York Law School Law Review, vol. 51, no. recent past. The use of the loya jirga, which 3 (2006–07), pp. 557–79. strikes a chord of historical unity and national 2. The loya jirga is an Afghan tradition with an august but vague history. The concept was- ex tradition for many Afghans, also contrib- trapolated from the model of the tribal jirga or uted to the sense of progress toward peace. shura, an ad hoc, village-based institution that al- In addition, a framework for elections and lows broad representation and, nominally, consen- division of powers, if followed, will hopefully sual decision making. The loya jirga is intended to channel conflict into the political system and be a national manifestation of community decision away from more destructive pathologies. making. It has been used on average every twenty years to confirm the succession of monarchs, pass However, the process also heightened constitutions, and approve government policy. The tensions and highlighted deep fissures in the last loya jirga deemed broadly legitimate was held in polity. The creation of a permanent -consti 1964 to approve a new reformist constitution. Framing the State in Times of Transition 559

3. For historical background on the conflicts, 19. Maley, Afghanistan Wars; Rubin, Fragmen- see William Maley, The Afghanistan Wars (New tation of Afghanistan. York: Palgrave Macmillan, 2002). 20. UN Commission on Human Rights, 4. For insight into the cleavages within Af- Fifty-first Session, Item 12 of Provisional Agenda, ghan society, see Louis Dupree, Afghanistan (New Final Report on the Situation of Human Rights in Jersey: Princeton University Press, 1980); Larry P. Afghanistan, prepared by Felix Ermacora in ac­ Goodson, Afghanistan’s Endless War (Seattle: Uni- cordance with UN High Commissioner for Hu- versity of Washington Press, 2001); Barnett R. Ru- man Rights, E/CN.4/1993/42, E/CN.4/1994/53, bin, The Fragmentation of Afghanistan: State Forma- E/CN.4/1995/64, 1994. tion and Collapse in the International System, 2nd ed. 21. See Whitney Azoy, Buzkashi: Game and (New Haven, CT: Yale University Press, 2002). Power in Afghanistan (Philadelphia: University of 5. Agreement on Provisional Arrangements Pennsylvania Press, 1982). An Afghan game played in Afghanistan Pending the Re-establishment of on horseback, using a headless calf or goat as the Permanent Government Institutions, S/2001/1154, ball. It is brutal, chaotic, and often played as every 2001 (hereinafter, the Bonn Agreement). man for himself. 6. The constitutional loya jirga (CLJ) was the 22. Dupree, Afghanistan, p. 566. constituent national assembly mandated by the Bonn Agreement to ratify a new constitution for Afghan- 23. Dupree, Afghanistan, p. 566. In 2003, an- istan. The CLJ’s legal framework was created by the other Frenchman was sent to advise Karzai on the Presidential Decree on the Convening of the Con- process and again inspired humor, this time about stitutional Loya Jirga, July 15, 2003, and augmented the potentially crippling competition between the by the Presidential Decree on the Rules of Proce- president and prime minister embodied in the dure of the Constitutional Loya Jirga, November 30, French constitution. In 1992, the Afghan prime 2003. minister in the interim government, Gulbuddin 7. Carlotta Gall, “Afghan Council Gives Ap- Hekmatyar, had famously shelled the presidential proval to Constitution,” New York Times, January 5, palace (and much of the city). And in 2003, Karzai’s 2006, p. A1. chief political rival, Younis Qanooni, made little se- 8. The Constitutions of Afghanistan (1923– cret of his desire for a weak president (Karzai) and 1996) (Kabul: Shah M. Book Co., n.d.). a strong prime minister (himself ). Cohabitation did not look promising to the Afghans. 9. Vartan Gregorian, The Emergence of Mod- ern Afghanistan (California: Stanford University 24. Dupree, Afghanistan, p. 566. Press, 1969), pp. 248–52 and 300–07. 25. Ibid., p. 566. 10. Gregorian, Emergence of Modern Afghani- 26. Ibid., p. 567. © Copyrightstan, pp. 263–74. See also Louis byDupree, Afghanithe- Endowment27. Ibid., p. 567. of stan (New Jersey: Princeton University Press, 1980), 28. Ibid., pp. 567–78. pp. 441–57. 29. Ibid., pp. 567–78. the 11.United Richard S. Newell, States “The Politics of Af- Institute of Peace ghanistan,” South Asian Political Systems, ed. Rich- 30. Ibid., at p. 571. The constitutional assem- ard L. Park (Ithaca: Cornell University Press, 1972), bly convened in 1931 by King Zahir’s father, Nadir pp. 95–116; Dupree, Afghanistan, pp. 559–65. Shah, had also begun on September 9, exactly thirty- three years earlier. Dupree, Afghanistan, p. 574. 12. Newell, “Politics of Afghanistan.” 31. Ibid., p. 573. 13. The Constitution of Afghanistan (herein- after, Afghanistan Constitution), 1964. 32. Ibid., p. 573. 14. Newell, “Politics of Afghanistan.” 33. Ibid., p. 585. 15. Newell, “Politics of Afghanistan”; Marvin 34. Afghanistan Constitution (1964), title 2, G. Weinbaum, “Afghanistan: Nonparty Parliamen- arts. 6–8. tary Democracy,” Journal of Developing Areas, vol. 7, 35. Afghanistan Constitution (1964), title 4, no. 1 (October 1972), pp. 57–74. art. 75. 16. Dupree, Afghanistan. 36. Afghanistan Constitution (1964), title 8. 17. Ibid. 37. Afghanistan Constitution (1964), title 4, 18. Constitutions of Afghanistan (1923–1996). art. 41. 560 J Alexander Thier

38. Afghanistan Constitution (1964), title 4, 57. Much of the information in this section is art. 42. based on the direct experience of the author. 39. Weinbaum, “Afghanistan: Nonparty Par- 58. Islamic Transitional State of Afghanistan, ­liamentary Democracy.” Presidential Decree Appointing Constitutional 40. Afghanistan Constitution (1964), title 5, ­Commission, Afghan Transitional Administration, art. 84. October 5, 2002. 41. Afghanistan Constitution (1964), title 5, 59. Abdul Salam Azimi, interview by the au- art. 78. thor, December 2004. 42. Afghanistan Constitution (1964), title 5, 60. Abdul Salam Azimi, interview by the au- art. 78. thor, December 2004. 43. Afghanistan Constitution (1964), title 7. 61. They were Dr. Mohammad Qasim Fazili; 44. Afghanistan Constitution (1964), title 7, Dr. Mohamad Rahim Sherzai; Sayed Musa Ashari; arts. 97, 107. Professor Mohamad Musa Marufi; Asefa Kakar; Mukarama Akrami; and Mohammad Sarwar Danesh. 45. Afghanistan Constitution (1964), title 7, art. 98. 62. International Crisis Group, Afghanistan’s Flawed Constitutional Process, ICG Asia Report no. 46. Marvin G. Weinbaum, “Legal Elites in 56, June 12, 2003, pp. 1–2. Afghan Society,” International Journal of Middle East Studies, vol. 12, no. 1 (August 1980), pp. 39–57. 63. USAID funded the Asia Foundation to hire a number of consultants to provide substantive 47. Afghanistan Constitution (1964), title 1, input to the constitutional drafting process, includ- art. 2, and title 4, art. 64. ing Yash Pal Ghai and this author. These inputs 48. Afghanistan Constitution (1964), title 7, were transmitted through meetings and a series of art. 102; see Colin Turner, Islam: The Basics (New options papers that were drawn up on specific sub- York: Routledge, 1996). The Hanafi school is con- jects. Barnett Rubin of New York University also sidered the oldest and most liberal of the four Sunni commissioned a series of options papers from con- schools of law. stitutional experts. 49. UN Security Council, UN Security Coun- 64. Secretariat of the Constitutional Commis- cil Resolution 1378, S/RES/2001/1378, 2001. sion of Afghanistan, “The Constitution Making Pro- 50. Jarat Chopra, Jim McCallum, and J Al- cess in Afghanistan,” March 10, 2003, p. 2. exander Thier, “Planning Considerations for Inter- 65. Islamic Transitional State of Afghanistan, national Involvement in Post-Taliban Afghanistan,” Presidential Decree on the Constitutional Commis- Brown Journal of World Affairs, vol. 8, no. 2 (Winter sion, April 26, 2003. ©2002), Copyright pp. 2–4. by the Endowment66. Masuda Sultan and Hannibal Travis, of let- 51. Ahmed Rashid, “Breaking the Cycle,” Far ter to the editor, Boston Globe, November 13, 2003, Eastern Economic Review, December 6, 2001, p. 16. p. A19. the52. The United Bonn Agreement, art. States I(6), available Institute67. Abdul Salam Azimi, ofinterview Peace by the au- at www.uno.de/frieden/afghanistan/talks/agreement. thor, September 2003, Kabul, Afghanistan. htm (accessed April 10, 2009). 68. Secretariat, Constitutional Commission, 53. Bonn Agreement, art. II(1). “Public Consultation Strategy,” n.d. (on file with 54. The power of decree was granted to the author). See also Vanessa Gezari, “Mistrust Mars interim administration in the Bonn Agreement Drafting of Constitution; Afghans Mindful of Prior (art. III(C)(1)), but was never explicitly granted to Failures,” Chicago Tribune, July 9, 2003, p. 4; Eliza- the transitional administration through the Bonn beth Sullivan, “Afghanistan’s Constitution is a Lo- Agreement or the emergency loya jirga. The tran- cal Creation,” Plain Dealer (OH), January 8, 2004, sitional administration, however, continued to ex- p. B9. ercise this power. As of December 2002, Chairman 69. Fatema Gailani, interview by the author, Karzai had issued more than 150 decrees. December 2004, Kabul, Afghanistan. 55. Reuters, “Uzbek Warlord Rejects Afghan 70. Azarbaijani-Moghaddam, Technical Les­- Accord,” December 6, 2001; quoting Sir Sayeed sons Learned from the Afghan Civil Society Forum Gailani. (ACSF)/Swisspeace Civic Education for the Constitu- 56. Reuters, “Uzbek Warlord Rejects Accord.” tion Project (Sippi: ACSF-Swisspeace, 2003). Framing the State in Times of Transition 561

71. According to “The Constitution Making 82. “Dog washers” is a derogatory term for Process in Afghanistan” a report by the Constitu- Afghans who left to live in the West. They are called tional Commission on March 10, 2003, which was dog washers to suggest that in the rich and decadent formalized by decree on May 10, 2003, the respon- West, the only jobs these Afghans could get was to sibilities of the commission included “preparing wash people’s dogs. It is an indictment of both the a report analyzing the views of Afghans gathered West and the Afghans who went there. during public consultations and making the report 83. Malali Joya, speech from the floor of the available to the public.” For figures on the consul- Emergency Loya Jirga, December 17, 2003. tation process, see “UNAMA Draft Constitution 84. Order of the President of the Islamic Tran- Factsheet,” available at www.unama-afg.org/docs/_ sitional State of Afghanistan on the Rules of Pro- nonUN%20Docs/_Loya-Jirga/CLJ/Draft%20 cedure of the Constitutional Loya Jirga, no. 4913, Constitution%20Factsheet.doc (accessed April 10, 2003, chap. XII, art. 37. 2009). 85. Waheedullah Massoud, “EU Envoy ‘Dis- 72. Constitutional Commission Secretariat, turbed’ as Afghan Assembly Chairman Brands Del- Transitional Islamic State of Afghanistan, Analyti- egates ‘Infidels.’” Agence France-Presse, January 1, cal Report of the Views and Proposals Made by the Peo- 2004. ple, for the Drafting of a New Constitution, October 86. Gregorian, Emergence of Modern Afghanistan. 2003. 87. As noted above in note 23, the former 73. See Islamic Transitional State of Afghan- prime minister, Gulbuddin Hekmatyar, shelled the istan, Presidential Decree on the Convening of the capital and presidential palace in 1992. Constitutional Loya Jirga, July 15, 2003. 88. Dupree, Afghanistan. 74. See Presidential Decree on the Constitu- 89. Mohammad Hashim Kamali, Law in Af- tional Loya Jirga, July 15, 2003. ghanistan: A Study of the Constitutions, Matrimonial 75. Presidential Decree on the Convening of Law, and the Judiciary (Leiden: E.J. Brill, 1985). the Constitutional Loya Jirga, July 15, 2003, art. 4. 90. Afghanistan Constitution (2004), arts. 1–3. 76. Paul Watson, “Fears of Vote Buying Muddy 91. Afghanistan Constitution (2004), art. 45. Path to Loya Jirga; Such Allegations Are Under- mining the Credibility of Upcoming Afghanistan 92. Afghanistan Constitution (2004), art. 131. Assembly Before It Even Begins to Debate a Draft Compare mention of Shia schools with the 1964 Constitution.” Los Angeles Times, December 12, constitution, which solely relies on the Sunni Hanafi 2003, p. A5; see also Afghanistan: Hell of a Nation, school. directed by Tamara Gould, Wide Angle PBS, 2004, 93. Chairman Mojadeddi, interview by the the documentary film in which CLJ delegates pro- author, December 2004, Kabul, Afghanistan. © Copyrightvide firsthand accounts of intimidationby the and vote Endowment94. Opinion of delegate, quoted in,of Stephen buying in the CLJ elections. Graham, “Parties Try to Save Afghan Charter 77. In the end, President Karzai exceeded his Talks,” Associated Press, January 2, 2004. theallotted United appointments by two, States which went unchal- Institute95. Rules of Procedure of for Peacethe Constitutional lenged. This was deemed a minor overstep compared Loya Jirga, Article 25, November 2003 (copy on file to the 150 delegates Karzai unexpectedly added to with the author). the Emergency Loya Jirga. 96. Hamida Ghafour, “Afghans Agree to New 78. Reuters, “Karzai Seeks Strong Powers at Charter,” Los Angeles Times, January 5, 2004, p. A1. Key Afghan Assembly,” December 14, 2003. 97. Gall, “Afghan Council Gives Approval to 79. International Crisis Group, The Afghan Constitution.” Transitional Administration: Prospects and Perils, Asia 98. President Karzai, Closing Address to the Briefing no. 19, July 30, 2002. Constitutional Loya Jirga, January 4, 2004. 80. Rules of Procedure of the Constitutional 99. Zalmay Khalilzad, letter to the editor, Loya Jirga, Order of the President of the Islamic Washington Post, January 6, 2004. Khalilzad was State of Afghanistan no. 4913, dated 16.09.1382 the special presidential envoy and ambassador to (November 2003). Afghanistan. 81. Accounts from CLJ subcommittees were 100. UNAMA, Transcript of Impromtu ­Re- provided by delegates and facilitators in interviews marks by the Special Representative of the ­Secretary- with the author. General, Lakhdar Brahimi, at the Closing Cere- 562 J Alexander Thier

mony of the Constitutional Loya Jirga, January 4, ghanistan, October 2007; and author interview with 2004, available at www.unama-afg.org/docs/Docs. Mohammad Younus Qanooni, speaker of the Wolesi htm (accessed April 10, 2009). Jirga (lower house) of Afghanistan, October 2007. 101. See Chris Johnson, William Maley, 105. Afghanistan Constitution (2004), art. 139. J Alexander Thier, and Ali Wardak, “Afghanistan’s 106. Barnett R. Rubin, “Afghanistan’s Uncer- Political and Constitutional Development,” Over- tain Transition from Turmoil to Normalcy,” Coun- seas Development Institute, 2003, describing wide- cil on Foreign Relations, March 2006, p. 26. spread support for a strong executive in interviews 107. Conrad Schetter, “Ethnicity and the ­Po- conducted throughout the country in 2002. litical Reconstruction of Afghanistan,” The Center 102. Carlotta Gall, “Provincial Capital in Af- for Development Research, Working Paper no. 3, ghanistan Seized by a Warlord’s Forces,”New York 2004. Times, April 9, 2004, p. A5. 108. Maley, Afghanistan Wars. 103. Nick Meo, “Afghan Court Revisits Days 109. Interview by the author with Moham- of the Taliban With Ban on Cable TV.” The Inde- mad Younis Qanooni, speaker of the Wolesi Jirga of pendent, November 11, 2004, p. 33. Afghanistan, October 2007. 104. Author interview with Adbul Salam Azimi, chief justice of the Supreme Court of Af-

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