AFGHANISTAN’S FLAWED CONSTITUTIONAL PROCESS 12 June 2003 ICG Asia Report N°56 Kabul/Brussels TABLE OF CONTENTS EXECUTIVE SUMMARY AND RECOMMENDATIONS ...................................................i I. INTRODUCTION ...............................................................................................................1 II. AFGHANISTAN’S MANY CONSTITUTIONS ............................................................2 A. THE PUSH FOR MODERNITY: THE 1923 CONSTITUTION...................................................... 3 B. THE PARTIAL REVOLUTION: THE 1964 CONSTITUTION...................................................... 4 III. SUBSTANTIVE TRIGGERS FOR CONFLICT IN THE CONSTITUTIONAL DEBATE.........................................................................................................................................6 A. RELATIONS BETWEEN CENTRE AND PROVINCES................................................................ 6 B. THE ROLE OF RELIGION IN THE CONSTITUTIONAL DEBATE................................................ 8 IV. THE LEGAL FRAMEWORK FOR THE CONSTITUTIONAL PROCESS.........11 A. THE BONN PROCESS .......................................................................................................11 B. BACKGROUND LAW OF CONSTITUTIONAL CHANGE..........................................................12 V. THE CONSTITUTION-MAKING PROCESS ............................................................13 A. THE DRAFTING COMMISSION............................................................................................13 B. THE CONSTITUTIONAL COMMISSION................................................................................15 1. Selection of Commission Members ......................................................................16 2. Public Education ..................................................................................................17 3. Public Consultation ..............................................................................................19 4. The Planning Deficit ............................................................................................19 C. THE CONSTITUTIONAL LOYA JIRGA.................................................................................20 VI. THE RISKS AND REWARDS OF A MORE PUBLIC PROCESS..........................21 A. SECURITY.......................................................................................................................22 B. THE RISK OF EXTREMIST HIJACK.....................................................................................25 C. PUBLIC CONFUSION ........................................................................................................26 D. THE VALUE OF PUBLIC PROCESS I: LEGITIMACY..............................................................27 E. THE VALUE OF PUBLIC PROCESS II: REFORM OF POLITICAL PARTY CULTURE....................27 F. THE BONN AGREEMENT’S TIMING...................................................................................29 VII. CONCLUSION ..................................................................................................................31 A. MAP OF AFGHANISTAN.................................................................................................33 B. KEY DATES FOR POLITICAL AND CONSTITUTIONAL DEVELOPMENTS...........................34 C. ABOUT THE INTERNATIONAL CRISIS GROUP .................................................................35 D. ICG REPORTS AND BRIEFING PAPERS ..........................................................................36 E. ICG BOARD MEMBERS.................................................................................................42 ICG Asia Report N°56 12 June 2003 AFGHANISTAN’S FLAWED CONSTITUTIONAL PROCESS EXECUTIVE SUMMARY AND RECOMMENDATIONS Afghanistan is stumbling on its way to a new Compounding the problem of factional domination constitution. The document that must express the of the process is the absence of real public values and aspirations of a people may lack education or consultation. The UN-drafted plan widespread legitimacy because it has been drafted in contains minimal public education and consultation a secretive and unaccountable manner. International elements to which scant funds are allocated. efforts to promote public education and consultation have been inadequate. The Transitional Tentative plans for the Constitutional Loya Jirga Administration (TA) and the UN are now heading involve selecting a group of delegates from the down a well-trodden path in Afghan history whereby June 2002 Emergency Loya Jirga but as of June a constitution is proclaimed but no one, let alone 2003 there was no mechanism to do this. There is those in control of state power, has any incentive to considerable danger that a selection process that is respect it. not transparent and does not exclude the un-elected delegates allowed at the last moment to enter the The political process needs to be substantially Emergency Loya Jirga, will undermine any rethought and recast. More time is required to fashion credibility the new Loya Jirga might have. a truly democratic institution. The plan to convene an unrepresentative Constitutional Loya Jirga in October The UN has justified the absence of a fuller public 2003 should be dropped. Instead, the national process with three concerns – security for members of elections mandated for 2004 should be used to create the Constitutional Commission and the public; the a national assembly that can conclude work on and risk that the process might be hijacked by extremist adopt the constitution. groups, and the danger of public confusion. But none of these preclude a public process; all are amplified This can and should be done within the spirit of the by the current process. Bonn Agreement of 2001. That document provides few details for the democratic transition. Among The U.S. and other NATO members have failed to these is a Constitutional Commission tasked with address the real security deficit. Civil society across preparing for a Constitutional Loya Jirga that must Afghanistan consistently identifies provincial be convened not later than January 2004. But the governments as an important source of insecurity. TA and the UN have created a process lacking in Yet, the consultation process is organised mostly in transparency that accommodates the factions now provincial centres with the cooperation of those in power in Kabul. Both the Constitutional Drafting governments. Deployment of international military Commission and the Constitutional Commission, personnel, as occurred during the Emergency Loya charged respectively with writing a preliminary text Jirga process in a handful of places, and training of and then consulting publicly on it, were appointed special Afghan police and army units have not been without public process though the latter is considered. Nor has a more decentralised process to responsible for building public confidence. Because reduce provincial administration control. More time is the groups that dominate the TA, like the ethnic essential so real security measures can be taken. Panjshiri Tajik Shura-yi Nazar, heavily influenced the selections, few Afghans are likely to accept the Public debate could also negate some extremist Commissions as representative or neutral bodies. groups’ arguments and build coalitions among more Afghanistan’s Flawed Constitutional Process ICG Asia Report N°56, 12 June 2003 Page ii moderate factions. Indeed, this is a singular RECOMMENDATIONS opportunity to strengthen new democratic groups struggling to find a toehold in the political scene. To the Afghan Transitional Administration Some former mujahidin groups, especially Jamiat-i (TA): Islami-yi Afghanistan, and their allies also contain more progressive elements that could be nurtured 1. Explain the process that established the during a full public debate on the constitution. Constitutional Commission, with details of members’ political affiliations, and provide an Finally, public confusion is the product of obfuscation opportunity for public comment on members, by the TA and the UN. Most Afghans know what particularly in regard to allegations of they want from government and from a constitution. involvement in criminal behaviour and human Efforts by some in the UN in particular to paint them rights violations, with the possibility of removal as an undifferentiated peasantry lacking meaningful of those with a tainted past. opinions are demeaning. 2. Expand the timeframe for public debate on and adoption of the constitution by: To restore integrity to a process that has already been considerably compromised, the TA and the UN must (a) cancelling the October 2003 Constitutional first admit candidly to the Afghan people that Loya Jirga; and preparations have been inadequate and more time is (b) beginning a series of rolling elections in needed. The revised political timetable must be early 2004 for a national assembly that underwritten by a renewed international commitment would act as the Constitutional Loya to providing security, particularly outside Kabul. A Jirga envisaged by the Bonn Agreement, fresh international conference, called perhaps by discussing, initiating public debate on, NATO, which takes over the international security and finally adopting a constitution. mission (ISAF) in August 2003, and the UN, could serve as a venue. Having NATO as a co-host might 3. Publish the draft constitution prepared by the mesh the security and political processes together