The Rocky Road to a New Constitution

A constitution has been agreed upon in Afghanistan following tenacious negotiations. It guarantees equal status for women and acknowledges the Islamic tradition of the country. Said Musa Samimy sheds some light on the background.

photo: AP
Afghan President Hamid Karzai

​​The text of the new Afghan constitution that was prepared by a commission of experts has existed for quite some time already. It included 160 articles and contained-more so than the version that has now been approved-some contradictions in its basic contours and deliberately vague passages. Some observers even felt that the fundamental political question, whether the country around the Hindu Kush range would in future be governed democratically or as a theocracy, was not answered clearly enough. And some doubt still remains: Despite express mention of a democracy in the preamble, the approved draft also notes that no laws that oppose the laws of Islam shall be permitted.

On the road to a presidential form of government

Though lacking the federal structures anchored in the US constitution, the draft constitution was also clearly based on the US model of state, albeit in a weaker form. The draft was also unmistakably tailor-made for President Hamid Karzai. In it, the president was given far-reaching authority, practically without any serious counterbalances.

Over 500 delegates from all tribal groups, political parties, and regions had to go through hard negotiations in order finally to find a solution that was acceptable for all. The obstacles were in part due to political ambitions of individual delegates, but mostly they resulted from Afghanistan's fundamental, multiethnic nature.

More than 30 different ethnic groups in the country

There are more than thirty different ethnic groups living in Afghanistan, from the Pashtuns to the Tajiks to the Hazaras. They live together within the framework of a historically grounded-yet always fragile-balance. The Taliban, for example, come from among the Pashtuns. Non-Pashtun ethnic groups, on the other hand, have emerged from the prolonged war with a strong consciousness. They are well-organized politically and, especially since the collapse of the Taliban, have their own military power base.

They no longer accept the hegemony of the Pashtuns, the group from which almost all the kings in Kabul have come since the founding of the dynastic state of Afghanistan in 1747. These groups want to have adequate participation in the central government, no matter how the Afghan state is structured.

Representatives of Pashtun interests, on the other hand, including President Hamid Karzai, who is considered pro-Western, strove to regulate the question of power in their own way. A clash of the positions was virtually predestined.

President Karzai exerted pressure by declaring that he would not be a candidate in the upcoming elections if the new constitution refused to provide the office of president with the desired strong role. Karzai's powerful minister of finance Ashraf Ghani Ahmadzai supported this by promising a financial injection of one million dollars for each province. Of course he demanded something in return: the delegates were supposed to vote for the proposed draft constitution.

Wrestling over the articles

The delegates proved courageous, however, and Karzai's opponents were able to push through changes in some points. Compared to the original draft, for example, the power of the parliament was strengthened, extending so far as to have the power to veto the president on special important issues.

The new constitution for Afghanistan does provide for a presidential system as was desired, but one with a bicameral legislature, including the Wolesi Jirga (or House of the People), a house of representatives, and the Meshrano Jirga (or House of Elders), comparable to a Senate.

Political maneuvers behind the scenes

In getting the constitution approved, the old recipe used in December 2001 at the Petersberg talks proved applicable yet again: pressure from the international community and comprehensive lobbying behind the scenes. Leaders in the effort were again Lakhdar Brahimi, UN special representative for Afghanistan, and US ambassador to Afghanistan Zalmay Khalilzad. Khalilzad, a US citizen of Afghan descent, is also considered the architect of the 2001 Petersberg agreement.

Equal rights for women are anchored in the new constitution, as is the protection of human rights. Nevertheless, there is still much stuff for future conflict. Although the Sharia, the Islamic code of law, is not explicitly anchored in the new constitution, it is nonetheless possible to interpret the wording of the approved constitution such that Afghans can only enjoy their freedom within the scope of Islamic laws and prohibitions.

The new constitution is already the country's sixth since the 1920s. The five previous ones all failed in practice because the necessary prerequisites for a stable state were lacking, especially reliable civil institutions. Time will tell if the new constitution will be more lasting.

Translation from German: Allison Brown

The German Federal Foreign Minister Joschka Fischer welcomed the adaption of the constitution. Read the statement here.

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