Creating a Constitution for Afghanistan

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Crafting a Constitution for Afghanistan
Rubin, Barnett R.
Journal of Democracy, Volume 15, Number 3, July 2004, pp. 5-19 (Article)
Published by The Johns Hopkins University Press
DOI: 10.1353/jod.2004.0051
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Barnett R. Rubin
Barnett R. Rubin is director of studies and senior fellow at the Center
on International Cooperation of New York University.
In late 2001, he
advised UN Special Representative for Afghanistan Lakhdar Brahimi
during the talks that led to the Bonn Accords. Rubin's books include
The Fragmentation of Afghanistan: State Formation and Collapse in the
International System (2nd ed., 2002).
On 4 January 2004, nearly all 502 members of the Constitutional
Loya Jirga (Grand Council) meeting in Kabul silently stood to approve
a new constitution for the "Islamic Republic of Afghanistan." President
Hamid Karzai signed and officially promulgated the document on 26
January 2004, inaugurating Afghanistan's sixth constitution since King
Amanullah Khan promulgated the first in 1923. Delegates hoped that
this relatively liberal Islamic constitution would provide a framework
for the long task of consolidating basic state structures, as the country
struggled to emerge from decades of anti-Soviet jihad, interfactional
and interethnic civil war, and wars of conquest and resistance by and
against the radical Islamists of the Taliban movement. In his speech to
the closing session of the Loya Jirga, President Karzai explained why
he thought that the new constitution--which mandated a presidential
system with a bicameral parliament, a highly centralized administra-
tion with unprecedented rights for minority languages, and an Islamic
legal system safeguarded by a Supreme Court with powers of judicial
review--would meet the needs of a desperately indigent but proud coun-
try searching for a period of stability in which to rebuild.
The constitution was the next to last step in the road map to "reestab-
lishing permanent institutions of government" outlined in the Bonn
Accords of 5 December 2001. Afghans signed that agreement under UN
auspices as the United States was completing the job of routing the
Taliban regime that had given refuge to Osama bin Laden. The constitu-
tion provided a framework for the "free and fair elections" to choose a
Journal of Democracy Volume 15, Number 3 July 2004

Journal of Democracy
"fully representative government" that were to complete that process.
But two and a half years--the time frame of the Bonn Agreement--could
hardly suffice to turn a failed state into a stable democracy. Whether the
constitution, and with it the international effort in Afghanistan, could
achieve its stated goals still depended on efforts beyond its scope, such
as demobilizing militias and eradicating the drug trade and other illicit
activities that accounted for more than a third of the Afghan economy.
Unlike some postwar agreements, the Bonn Accords set out a process
rather than a detailed settlement of major political issues. This reflected
the time pressure under which the Accords were forged, which set a
speed record as such things go. Afghanistan had been through 23 years
of many-sided civil strife marked by the overt and covert involvement
of regional and global powers, yet only nine days elapsed between the
UN's opening of talks in the former West German capital and the affix-
ing of signatures on 5 December 2001.
Once U.S. president George W. Bush announced on October 1 that the
United States would support a political transition and a UN-coordinated
reconstruction program in Afghanistan, the pressure was on to cobble
together a successor regime to the ousted Taliban movement, whose rule
had sheltered al-Qaeda while that organization made Afghanistan into
its base for global terrorism.1 Four Afghan groups participated in Bonn.
The two most important were the Islamic United Front for the Salvation
of Afghanistan, commonly known as the Northern Alliance (NA), which
had received the bulk of U.S. military assistance leading up to and dur-
ing the military operations that began on October 7, and the "Rome
group" representing exiled King Muhammad Zahir Shah, a resident of
the Italian capital since his overthrow by a 1973 military coup.
The NA represented force on the ground and a mixture of ethnic
claims with those of politicized Islam, both Sunni and Shi'ite. Figuring
prominently in NA ranks were members of such northern and central
ethnic groups as the Tajiks, the Uzbeks, and the Hazaras--all of which
had armed and mobilized themselves during decades of warfare. Their
Taliban foes represented a reassertion of the power of the historically
dominant Pushtun ethnic group, this time in the guise of a harsh Islamic
fundamentalist militia. Most of the NA groups had fought against the
Soviets as mujahideen (holy warriors), though the main Uzbek group
had begun as a tribal militia under the communist regime.
The Rome group, consisting of exiles mostly living in the West,
brought with it the legitimacy of the ex-king, whose forty-year reign
(1933-73) had marked the last time that Afghanistan had enjoyed any
substantial degree of peace or stability. While long-suffering Afghans
felt great sympathy for their former monarch, he had no political or mili-
tary organization in the country and nothing resembling a concrete
program. The ex-king seemed valuable to the United States and the UN as
a possible source of historic continuity and a potential rallying point for

Barnett R. Rubin
Pushtuns, who had no armed organizations comparable to those of the
NA. The Pushtun-led groups in the NA, including a radical Islamist for-
mation under Abd al-Rabb al-Rasul Sayyaf, had no ethnic or tribal base
of support in the southern heartland of the Pushtuns. The other two
groups--known as "Peshawar" and "Cyprus" after places where they had
met--included small, ad hoc groups based in Pakistan and Iran.
Despite this attempt at ethnic inclusiveness, the group assembled in
Bonn did not represent the people of Afghanistan, either directly or
indirectly. The UN veteran and former Algerian foreign minister Lakhdar
Brahimi, who chaired the talks in his capacity as Secretary-General Kofi
Annan's special representative, repeatedly stressed that no one would
remember how unrepresentative the meeting had been if the partici-
pants managed to fashion a process that would lead to a legitimate and
representative government.
The Path to Legitimacy
The process that the Bonn participants agreed upon aimed at forming
such a government. The approval of a new constitution and the holding
of the elections were to be the final steps. Given the insecurity and
disarray besetting Afghanistan, immediate direct elections would clearly
be impossible. To fill the resulting gap, the Bonn Accords drew on an
institution that had figured in the crafting of each of Afghanistan's five
previous constitutions (1923, 1931, 1964, 1977, and 1987), the Loya
Jirga. Previous rulers had summoned such meetings to legitimate key
decisions. Mostly these earlier jirgas had been appointed, docile bod-
ies. A few, such as the Constitutional Loya Jirgas (CLJs) of 1923 and
1964, had actively debated issues. And one, in November 1928, had
actually rejected reform proposals put forward by King Amanullah and
set the stage for the revolt that would drive him from his throne two
months later.
The Loya Jirga developed as a state institution, but it harked back to
large jirgas that Pushtun tribes had held in earlier centuries, when these
tribes constituted both the main military force and, in effect, the elec-
tors of the king. During periods of turmoil when Afghans recognized no
legitimate ruler, such jirgas had taken key national decisions. Drawing
on these precedents, Zahir Shah's followers had developed a proposal
for an Emergency Loya Jirga (ELJ) as a first step to reconstituting state
power. The NA, despite the misgivings of some members, agreed to a
UN-monitored ELJ as the legitimating device for the process of build-
ing a more representative government. Like all former constitutions of
Afghanistan, the one drafted as part of the Bonn process was also to be
approved by a Loya Jirga.
As an interim measure, the agreement reached at Bonn reinstated
much of Zahir Shah's 1964 basic law, which had turned Afghanistan

Journal of Democracy
into a constitutional monarchy. While that constitution had provided
guarantees of public liberty unprecedented in Afghan history, it had
failed to establish a stable system of government. Over a mere ten years,
the country had three elections and four governments, none of which
succeeded in implementing needed reforms. Many Afghans greeted with
relief the constitutional monarchy's overthrow and the establishment
of a more authoritarian republic by Zahir Shah's cousin, Daoud Khan.
The Bonn Accords did not reestablish the monarchy, of course, but
instead vested both executive and legislative power in the cabinet, to
be headed by a president who would be head of state as well as chief of
government. The 1964 constitution had followed its predecessors in
making Afghanistan an officially Sunni Muslim state. Religious rites
performed by the state were carried out in accord with the Hanafi sect,
one of the four main schools of jurisprudence followed by Sunni Mus-
lims (Article 2). In cases where judges could find no provision in the
constitution or written law to resolve a case, they were required to fol-
low "the basic principles of the Hanafi jurisprudence of the shari'a of
Islam and, within the provisions set forth in this constitution, render a
decision that in their opinion secures justice in the best possible way"
(Article 102). Hence, as in most "moderate" Sunni constitutions, the
1964 constitution was supreme over a judge's interpretation of Islam.
No law could be contrary to the "basic principles of the sacred religion
of Islam" (Article 64), but the king, not the judiciary or the ulama (Is-
lamic scholars), had been the ultimate arbiter of this provision. The
1964 constitution also declared Afghanistan a unitary state organized
according to the "principle of centralization" (Article 108). As of late
2001, however, power was in fact anything but centralized, pointing to
a disjunction between legal and ground-level realities that would soon
become a focus of much political and constitutional controversy.
The participants in Bonn chose the personnel of an interim adminis-
tration to serve under these provisions. Though the Accords claimed
that considerations of "professional competence and personal integ-
rity" had guided the choice of interim officials, no one should be too
surprised that they were mostly selected to offer patronage to different
factions and to recognize the distribution of armed might on the ground.
The interim administration's chairman, Hamid Karzai, was a Pushtun,
originally from Kandahar but more recently residing in exile, who had
ties to the king and who had come back to Afghanistan with U.S. assis-
tance to raise forces against the Taliban in its own southern bastion of
Kandahar Province. The "power ministries"--defense, interior, and for-
eign affairs--all went to the leading faction within the NA, which also
controlled the powerful intelligence service, developed in the 1980s on
the model of the Soviet KGB. This faction, the Supervisory Council of
the North (Shura-yi Nazar or SN), was based in the Tajik areas in and
around the Panjshir Valley just north of Kabul. The SN's founder, mili-

Barnett R. Rubin
tary leader Ahmed Shah Massoud, had been murdered on 9 September
2001 by al-Qaeda suicide bombers posing as journalists. When Taliban
and al-Qaeda forces fled Kabul under U.S. bombing on November 17,
the SN had moved in and begun placing its own candidates in key posts.
Most Afghans probably saw the government chosen at Bonn as tilted
in favor of the heavily Panjshiri SN. The Bonn process was designed to
make the government gradually more representative. The first step was
to be the holding of an ELJ by June 2002, with the mission of electing a
head of state and approving what the Accords called the "structure and
key personnel" of a transitional administration. With UN and other in-
ternational help, the government held the ELJ on time. The indirectly
elected body of about 1,500 representatives voted to keep Hamid Karzai
as Afghanistan's chief executive for another two years. After lengthy
negotiations, Karzai named a government on 19 June 2002, the last day
of the nine-day meeting. Many delegates objected that the ELJ had not
in fact enabled them to vote on the "structure and key personnel" of the
transitional administration and that the new administration (named the
Transitional Islamic State of Afghanistan) was not significantly more
representative than its predecessor.
Show of Hands or Show of Force?
The same factors that limited the accomplishments of the ELJ bedev-
iled the constitutional process which followed. Afghanistan was and is
not a place where a show of hands at a meeting can decide who will hold
power. The U.S.-led coalition gave commanders weapons and cash to
fight the Taliban. The commanders used those resources to remobilize
patronage networks into armed groups. These groups were then able to
seize control of assets such as land, customs posts, and businesses as well
as smuggling routes for drugs, lumber, or gems. The mutually reinforcing
personal control of armed groups and economic assets meant warlordism.
The warlords occupied the power vacuum left by the collapse of the state
over decades and the destruction of the Taliban administration. Though
international aid and troops ensured that the Karzai government would
hang on in Kabul, the first post-Taliban year saw little in the way of
effective efforts to widen the reach of President Karzai's writ or boost
state-building. Even within Kabul, Karzai had only limited control over
his own government, many of whose top officials led militias that had
fought or were still fighting against the Taliban with U.S. support. It was
little wonder that he hesitated to dislodge such leaders.
The Karzai government's inability to guarantee the security of voters
during the stages of voting for the ELJ, or of the delegates once elected,
hampered the entire ELJ. In some districts, armed commanders occupied
the polling places, and the UN canceled or invalidated the elections.
More commonly, intimidation was harder to prove, but just as clear to

Journal of Democracy
its objects. Agents of the security services worked inside the Loya Jirga
tent. One Islamist leader (Abd al-Rabb al-Rasul Sayyaf) claimed that
anyone criticizing "mujahideen" deserved the death penalty for blas-
phemy. Fear of the intimidation tactics used by Islamists at the ELJ
made the UN and the Karzai government cautious about opening the
constitutional process to the public too early. Previous Afghan consti-
tutions had been drafted in secret by governments that controlled the
outcome. This was the first Afghan constitutional process where the
outcome was open to political debate, and the UN insisted on introduc-
ing a measure of public consultation into the process. Brahimi also saw
the UN's role as assuring that the constitution would create a "work-
able" form of government and conform to basic international standards.
Ultimately, the commission consulted Afghans in every province, in
the refugee communities of Pakistan and Iran, and through tens of thou-
sands of written questionnaires. Nonetheless, the government and UN
thought it best to keep the content of deliberations confidential until
the commission could make public a thoroughly vetted text.
The president first appointed a drafting commission of nine members,
which completed a text based heavily on the constitution of 1964. A
larger commission of 35 members reviewed the text, which was also
shown to a few international experts and the government's National
Security Council (NSC).2 The government did not publish the text even
during the public-consultation sessions. The government published the
commission's final draft, with changes incorporated at all these stages,
on November 3, only 37 days before the scheduled opening of the CLJ,
which finally convened a few days late on 14 December 2003.
The CLJ went better than many had dared to hope it would. The UN
had more time and experience in making the meeting secure, and the
president and his supporters were better organized. Hence warlords and
jihadi leaders had lost some of the capacity to intimidate that they had
exercised at the ELJ. The result was a constitution that reflected to a
considerable extent the agenda shared by Karzai and those cabinet mem-
bers who considered themselves "reformers." The constitution,
nonetheless, is a product of the fluid situation that is postconflict Af-
ghanistan. It remains to be seen whether measures crafted with an eye to
the immediate demands of state-building will serve equally well the
needs of long-term governance. We can explore this question by exam-
ining what the new Afghan constitution has to say on such key issues as
the form of government, the place of Islam, the structure of the state,
language and ethnic identity, and the judiciary.
Debate over these issues reflected historical realities as well as cur-
rent dilemmas. Afghanistan began as a Pushtun empire ruled by tribal
dynasts from Kandahar, and even today the ethnic question in its plain-
est form asks whether the state is to be the instrument of a mostly
Pushtun elite, or a mechanism through which all citizens may equally

Barnett R. Rubin
take part in self-government. Both Loya Jirgas showed the strength of
a supra-ethnic "Afghan" national identity, but this national identity
coexisted with strong ethnic identities, and ethnic politicians from
different groups advocated different views of how to constitute the
Afghan nation. Pushtuns have tended to want a strong and Pushtun-
run central state. Tajiks have focused on power sharing in the central
state, while Uzbeks and Hazaras have desired recognition of their iden-
tities and mechanisms of local self-government. Strengthening the
central government was also a goal of those CLJ delegates who saw the
regional warlords as illegitimate and who supported state-initiated re-
forms. Among the strongest advocates of centralizing reforms were
Westernized Pushtuns. Their opponents, including non-Pushtun Islam-
ist commanders, charged that an ostensibly "nonethnic" position
actually served the interests of the largest group. All agree that Pushtuns
are the largest group, but by how much, and whether they are a major-
ity, are hotly contested issues.
Debate over basic institutions reflected assumptions about ethnic
politics. Everyone took it for granted that the first elected president
would be a Pushtun, and furthermore, one who enjoyed U.S. approval--
that is, Hamid Karzai. In a departure from the electoral system developed
on the basis of the 1964 constitution, which gave more weight to Pushtun
areas, the new constitution provides that the new bicameral parliament's
popularly elected lower house, the Wolesi Jirga, will be filled by depu-
ties elected "in proportion to population." This reflects the contention
by opponents of Pushtun domination that Pushtuns are not a majority.
These opponents therefore expect that the Wolesi Jirga, now scheduled
to be elected concurrently with the president in September 2004, will
be a mostly non-Pushtun body in which local and regional powerholders
will exert great influence.
The Debate over Presidentialism
The draft constitution had called for a semipresidential system until
the NSC-review stage (the last phase before the CLJ met). Drafting-
commission members had hoped that the probable combination of a
directly elected Pushtun president and a non-Pushtun prime minister
(chosen by the Wolesi Jirga, and possibly a Panjshiri), would provide
ethnic balance. Hence the commission members resisted making the
prime minister fully subordinate to the president, an essential element
of stable semipresidential systems.
For a long time, in keeping with the power-sharing model, the com-
mission insisted that the prime minister, after being named by the
president, would need to pass a confidence vote in the Wolesi Jirga
before taking office. The argument that this would breed instability in a
highly factionalized and armed society by creating two executives with

Journal of Democracy
competing bases of power--the popular vote versus the support of par-
liament--led in September 2003 to the adoption of a more workable
system in which the president's appointed PM would not need a vote of
confidence to serve, but could be removed by a no-confidence vote.
Late in the joint review by the NSC and the drafting commission
came a shift to full presidentialism. The office of prime minister was
eliminated and the president received full power to appoint a cabinet
(whose members could not be serving legislators) subject to parliamen-
tary approval. Splits within the NA bloc and among the SN leaders in
the cabinet had set the stage for this move, long resisted by the drafting
commission. Major SN figures such as Education Minister Yunous
Qanooni and Defense Minister Mohammed Qasim Fahim had taken dif-
ferent positions--the former had his eyes on a prospective premiership,
while the latter aspired to become sole vice-president under Karzai--
and the broader NA bloc had split as well. Qanooni found himself the
cabinet's only supporter of the soon-to-be-rejected premiership option,
while Fahim failed to deliver the support of any of his faction's CLJ
delegates to the presidential system. The ethnic-Hazara vice-president,
Abdul Karim Khalili, however, delivered some support for the proposal,
and Karzai then backed the idea of two vice-presidents, one of whom
would presumably be Khalili.
The issue of governmental systems came into sharp relief at the CLJ
as calls rang out for an up-or-down vote on presidentialism versus
parliamentarism. Nearly all Pushtun delegates, joined by some mem-
bers from other ethnic groups, came out for presidentialism. A bloc of
non-Pushtun delegates, however, strongly supported a parliamentary
system. Both sides made cases that mixed genuine public consider-
ations with ethnopolitical ambitions. For Pushtuns and reformers,
presidentialism provided a way for one of their own--everyone knew
that the first incumbent would be Karzai--to emerge from the Bonn
compromise with non-Pushtun armed factions as the popularly elected
head of state. There would be no uncertainty about who held legitimate
executive power in Kabul, and Washington would retain the benefit of
having a clearly identifiable Afghan partner whom it would know well
and indeed preferred. The largely non-Pushtun delegates who opposed
presidentialism saw in it a risk of personal and ethnic dictatorship. A
parliamentary system, they argued, would likely result in coalition gov-
ernments that would be more representative and inclusive, safer from
potential abuses of executive power, and hence more stable.
To some extent, the debate rehearsed standard arguments about the
relative merits of presidential versus cabinet government, but with a
twist: Afghanistan has been struggling to leave behind years of failed
statehood. The challenge for any new government there is not to enact
this or that policy so much as it is to found the basic institutions that
must exist and function if the very idea of "policy making" is to mean

Barnett R. Rubin
anything at all. Afghanistan, in other words, needs to build a state.
Decades of internal warfare have left standing only the weakest of secu-
rity institutions. The rule of law still does not extend over much of the
country, and political parties are feeble and embryonic. Some believe
that a parliamentary system could better serve such a multiethnic coun-
try, though ethnic factions have also captured parliamentary systems.
The presidentialists' argument persuaded those who worry that a parlia-
ment chosen under these arduous conditions is too likely to be a
fragmented body dominated by warlords, local factions, and even drug
traffickers. In his speech to the CLJ's closing session, President Karzai
cited post-1945 Italy and India since the Congress Party's decline as
negative examples. Afghanistan's most urgent need is a functioning
government. Presidentialism's advocates--who are not all Pushtuns--
say that such a system, with its greater potential for what Alexander
Hamilton called "energy and dispatch," is more likely to bring such a
government about.
Another bruising issue concerned qualifications for office. This re-
volved around the difficult relations between the elites who had remained
in Afghanistan and those who were returning after decades of exile, in
many cases having become citizens of developed countries where they
found refuge, most often the United States. Two key cabinet members,
Finance Minister Ashraf Ghani and Interior Minister Ali Ahmad Jalali,
whom Karzai had appointed in 2003 as part of the process of broaden-
ing and professionalizing the composition of the cabinet, belong to the
latter group. By virtue of their roles, they have been on the front lines of
building a state and opposing warlordism. Both are U.S. citizens and
lived in the Washington, D.C., area as officials of the World Bank and
the Voice of America, respectively. During public consultations on the
constitution, a powerful nativism surfaced, with people from all over
the country calling for a ban on ministers' holding dual citizenship.
This feeling also crossed ethnic and partisan lines at the CLJ, but the
president and international actors voiced strong opposition to such a
ban. The compromise that was reached seems to keep the ban, but then
provides that if the president nominates a minister with dual citizen-
ship, the Wolesi Jirga will vote on it. Since the Wolesi Jirga has to
confirm all ministerial appointments anyway, nothing new is added.
The struggle over this issue, however, divided the cabinet and left more
bruised feelings than any other question.
The Constitutional Status of Islam
The debate on the role of Islam involved numerous elements of the
constitution, and the final result is a package deal that contains poten-
tial contradictions to spark future conflicts. More than almost any other
issue, this one involved balancing outside actors' demands for the ac-