It is ten years since Afghanistan got its new constitution. It had been debated over 22 days by the 502 delegates to a specially convened Constitutional Loya Jirga (CLJ). Hailed as one of the most progressive constitutions in the region, it was also called a “juggle of the Quran and democracy” (The New York Times). The legacy has, of course been lasting: conflict between the executive and the legislative powers and a parliament without political parties and focus, the lack of a clear mechanism for arbitration over election disputes and controversies over linguistic and ‘nationality’ issues. AAN Senior Analyst, Thomas Ruttig, was working with the office of the European Union’s Special Representative in Kabul at the time and was present throughout the CLJ proceedings.
Below, we re-print an article he wrote for a Swiss weekly, Wochenzeitung, immediately after the jirga broke up.
In the end, everything went astonishingly well. When chairman, Hazrat Sebghatullah Mojaddedi, urged the 102 female (1) and 400 male delegates to rise from their chairs “for two minutes” as a sign that they agreed to the new constitution on late Sunday [4 January 2004], all stood up without protest, although some had initially hesitated. (2) Hamed Karzai, the head of the Afghan Transitional Administration (2002-04), had evoked national unity in his final speech and even said a few sentences in Uzbeki. (3) The outgoing United Nations Special Representative, Lakhdar Brahimi, promised that his heart would remain in Afghanistan and was given an Afghan passport and the country’s highest award. The delegates received a medal as a memento of the occasion. Mojaddedi wept out of emotion. But there was no valid (4) formal vote during the whole 22 loya jirga days, except when the positions for the chair were elected. Long live the consensus principle.
The new constitution with its 162 articles in twelve chapters (see here and here) makes Afghanistan an Islamic republic with a presidential system that will continue to be headed by Karzai until elections are held. He needs to decree their date within six months. Karzai will be able to run for the position of head of state twice again for five years each. The president will be responsible to a two-chamber parliament that “approves” the “fundamental policies of the state … determined” by the president. When parliament will be elected, though, only heaven knows. The constitution stipulates that “everything must be done” to hold the first presidential election “at the same time” as the parliamentary one. In the UN, however, it can already be heard that, because of financial and security shortcomings, presidential and parliamentary elections will be held “either on time” – or “simultaneously”; both are scheduled for June 2004, according to the Bonn agreement. (5)
The constitution’s basic and human rights catalogue reads well. Men and women explicitly enjoy equal rights for the first time. Torture and forced labour are banned. Freedom of speech and of the media are protected, along with correspondence between defendant and lawyer and the rights of the religious minorities of Hindus and Sikhs. The Human Rights Commission [see a recent AAN analysis here] led by Sima Samar remains independent [although mandated by the president].
Up to the jirga’s last minute, different groups of delegates had hotly argued over the constitution’s text as a result of significant procedural shortcomings during the assembly. At the start, Karzai had presented the delegates with rules of procedure in the form of a presidential decree that immediately caused resentment. His approach was gratefully accepted as a gift by opposition delegates from Jamiat-e Islami. “First of all, we must vote on the future political system of our country,” said Abdul Hafiz Mansur, who had just been fired as head of national television. By this, he revealed what the main conflict line at the jirga would be – as Karzai had done in his opening speech in which he vehemently supported a presidential and rejected a parliamentary system. (6) The discussion was quickly suppressed, however, and there was never a vote on the rules of procedure.
This was a gap into which the Jamiatis made forays time and again, demanding ‘democratic’ rules. “Sometimes, our loya jirga gets so hot that people catch fire, and sometimes so cold that one needs warmer clothes”, Mojaddedi, who had been elected chairman in a run-off vote as candidate of the pro-Karzai faction, described the atmosphere.
Fearing those forays, Mojaddedi also blocked discussions about other crucial issues. There was “no time given to the delegates to express their views,” Abdul Kabir Ranjbar (7) complained, the first leftist to run for public office since his party’s overthrow in 1992 – he was a candidate for chairmanship in the still pluralistic first round, but was eliminated. Discussions and, more crucial decision making shifted more and more to a smaller tent next to the large loya jirga tent where US Ambassador, Zalmay Khalilzad, of Afghan origin, and UN envoy Brahimi mediated and twisted arms.
The first week of the loya jirga was dominated by the controversy over the political system. Initially, it was far from clear whether Karzai’s supporters would get their way. A number of opposition currents – from the Jamiatis to the Pashtun monarchists (8) to the ethnically mixed democrats – backed a limitation on the significant authorities given to the president in the draft drawn up by the Constitutional Commission (9) who had been appointed by Karzai. This draft, said Mansur (he belonged to the most vocal opposition delegates), “is not written for our future but to continue the current government”.
Another point of conflict was the demand for a constitutional court. Originally supported by democratically leaning delegates, the wind changed when mujahedin leaders like Abdul Rabb Rassul Sayyaf, Shia Ayatollah, Asef Mohseni and former interim head of state, Burhanuddin Rabbani, threw their weight behind it. “We women originally supported this demand”, Suraya Parlika (10) said, “but we have realised meanwhile that the jihadis want to dominate the country that way.”
To get the unorganised Pashtun delegates in line to support the presidential system, Karzai’s main allies in the assembly – his brother Qayyum, finance minister Ashraf Ghani, rural development minister Hanif Atmar, and [former mujahedin leader, Abdul Rabb Rassul] Sayyaf played the ethnic card, capitalising on the deep mistrust many Pashtuns have for the Northern Alliance mujahedin who had denounced them to US forces as ‘Taleban’. In cases where this pressure was not sufficient, promises and small gifts were added. “Look how many delegates now brandish new mobile phones”, Waqif Hakimi, another Jamiati, quipped. “Do you think they had them before?” A vote in the loya jirga costs around 300 dollars, a UN staff member told me, and political leaders who were able to deliver a whole group of delegates even receive 5,000 dollars. Kabul’s former mayor, Fazl Karim Aimaq, also a Jamiati, said he and his friends had been threatened: after the loya jirga, he was told, they would be “taken care off” if they continued to support a parliamentary system.
The presidential camp collected the harvest of this highly risky and divisive strategy in the loya jirga’s last week. Then, ethno-linguistic polarisation brought about a new opposition alliance that united the delegates from the minorities of northern and central Afghanistan. When the assembly was to start voting on the individual paragraphs of the constitution, only 276 delegates participated. Most of the other delegates, some 200, remained in their seats in a three-day boycott and refused to take part in the joint prayers and meals. The conflict had moved to the languages and minorities issue. The Pashtun majority fought tooth and nail to protect Pashto as the sole ‘national language’, as in all previous constitutions. Uzbeks, Tajiks, Hazaras and Turkmens, much more self-assured now as a result of their role in fighting the Soviets and later the Taleban, resisted as stubbornly. Finally, Dari was made the second “official language” and Uzbeki and Turkmen – jointly called Turki in the constitution – became “the third official language in areas where the majority speaks them”. [In exchange, the minorities accepted the presidential system, with some strengthened authorities given to parliament. But this was only achieved by a series of meetings of the Pashtun delegates, of all political persuasions, jointly convened by Sayyaf and Qazi Amin Waqad, leader of a break-away group of Hezb-e Islami and member of the constitutional commission, joined by the Baloch and Nuristani delegates which brought this group over the 50 per cent of the delegates’ threshold by the skin of their teeth. (11)
This back-and-forth inflicted some deep wounds to the ‘national unity’ so often alluded to during the loya jirga’s proceedings. “We were all forced to accept this compromise”, said Hamidullah Tarzi from Kandahar. (12) “It is as if we had taken poison, but for the unity of the country we accept this.”
Over these conflicts, another key issue was pushed into the background: would it be possible to implement the new constitution or would it just be “a new book on the shelf”, as monarchist delegate, Abdul Hakim Nurzai, (13) expressed his fear. Much in the text remained vague and needs to be defined more clearly by future laws. Article 3 puts the general stipulation that “no law can be contrary to the beliefs and provisions” of Islam. This evades the use of the term sharia, tantalising for many donors but an ambiguous wording in itself. Any necessary interpretation of the text is to be done by the Supreme Court which is dominated by Islamists. (14)
How this ambiguity could work out was demonstrated on Thursday [1 January 2004] by chairman Mojaddedi when he rejected to receive a resolution that suggested naming Afghanistan simply as ‘Republic’ not ‘Islamic Republic’ and had been signed by 146 delegates. (15) Twice, he publicly called the initiators “unbelievers” and “apostates” who, after the jirga, “will be punished”. Although Mojaddedi apologised for his language in the final session, there is a death sentence for apostasy. “This might give a foretaste of how an Islamic Republic could look like”, a high-ranking western diplomat said.
It was Malalai Joya, however, who became something like the jirga’s heroine, at least for some sectors of the Afghan population. This happened after she demanded, on one of the first days of the jirga, that “the war criminals” must be brought before a “national or international tribunal”. (16) In her home town of Farah in the west of the country, women demonstrated in her support in front of the local UN office. Other delegates picked up on her words. Mir Ghulam from northern Jawzjan reported the existence of “private jails” established by warlords. Mariam Sabzawar from Mazar-e Sharif stated that “the problems of the people cannot be solved as long as the warlords are not sidelined”. The UN’s Brahimi, in his farewell speech, went beyond diplomatic niceties for once und strongly attacked the power of the warlords and the lack of rule of law. On the final day of the jirga, the 25-year old Joya received strong applause when Karzai handed over her medal.
The different voices raised at the jirga show that, despite all threats, there is a significant anti-fundamentalist tendency in the country that could play a role in the forthcoming elections, provided the international community gets a genuine disarmament of militias going. But they will only be able to speak out freely when Karzai – with his planned cabinet reshuffle – sets a signal that the time of the warlords is over for good. [In the 2004 presidential election, Karzai ran with the slogan “end of coalition government” read as end of his alliance with the warlords.] But will he really go and confront them?
Published originally on 5 January 2003 in German; not available online. The article has been only slightly amended in this ten years on publication and footnotes added for background on some detail. New parts are in [brackets].
(1) Only eight of them were directly elected. The remaining ones either appointed by President Karzai or elected on separate lists. Each province got two guaranteed seats for women. At the 2002 Emergency Loya Jirga, with 1,600 delegates, 40 women were directly elected. When a female CLJ delegate proposed to include a provision in the constitution giving one third of the seats in the Supreme Court to women, it was rejected by the chair who said: “You have agreed to Islamic law. And female judges are not in accordance with Islam.”
A full list of delegates is here.
(2) Among them was the group of some 20 Jamiatis around Abdul Hafiz Mansur (who was the candidate running, and losing, against Mojaddedi for the CLJ chair) and Abdul Shukkur Waqef Hakimi. Halfway through the jirga they circulated a 29-point paper that reflected the maximalist programme of many of the non-Pashtun delegates: a stronger role for parliament, devolution of powers towards the province (“central but nor centralised government”), election of governors, district governors and mayors, minority rights (non-Pashtun languages, recognition of the Shia law school of Islam etc), having a “parliamentary republic” as the future political system, a constitutional council and a constitutional review after some years; renaming the Afghan currency from Afghani to Paisa; calling the country’s citizens Afghanistani instead of Afghan. Privately, they said they would be ready to support a presidential system without a prime minister but on the condition the president was elected by parliament (not by general elections) and would be answerable to parliament.
After the CLJ, they continued to allege that the published text of the constitution was different from the version the CLJ delegates had approved. They alleged four details (in articles 16, 50, 64 and 161) were different. This author crosschecked the allegations in 2003 (on the basis of two texts in Dari, the version distributed on the last CLJ day and the version officially distributed by the Secretariat of the Constitutional Commission in late January 2003) and found the allegations correct in three cases. Chapter 1 (article 16) had received an additional paragraph saying “Current national academic and administrative terminologies in the country shall be preserved.” It refers to objections that some key institutions had traditionally carried Pashto names only (Pohantun-e Kabul for Kabul University, stera mahkama for supreme court and even loya, wolesi or de meshrano jirga (upper and lower houses of parliament) etc. This debate is still on-going, and as a result the Faculty of Letters of Kabul University has no signboard at all. Article 50 omits a stipulation that administrative reforms should be undertaken only “after the authorisation by the National Assembly” (ie the parliament). In article 64, paragraph 11, a Dari/Pashto term for ‘confirmation’ (of some appointments by the national assembly) had been changed to a weaker version (from taswib to ta’id). In the fourth alleged example (article 161), there had been confusion over the numbering of the articles.
(3) Karzai switched between his mother tongue, Pashto, and Dari, as usual, but also give a nod to the just-approved third official language, “Turkic”. More about this issue in the text.
(4) There was an attempt to hold a secret vote over the chapters of the constitution starting on 1 January 2004 but it was stopped by a boycott of almost half of the delegates so that the necessary quorum of two thirds of the delegates was not reached (more about the boycott further down in the text). After the boycott was broken, no more formal vote over the constitution was held, as reported. See also: Stephen Graham, “Afghan Constitutional Assembly Begins Vote”, AP, 1 January 2004, not online, in the author’s archive.
(5) Both elections were finally held separately: presidential elections on 9 October 2004 and parliamentary (and provincial council) elections on 15 September 2005, all after some delay.
(6) Our analysis of issues that were held ambivalent in the constitutions text like conflict between the executive and the legislative powers and a parliament without political parties and focus, the lack of a clear mechanism for arbitration over election disputes and controversies over linguistic and ‘nationality’ issues here, here, here and here.
(7) Ranjbar, a Parchami: president of the Afghan Academy of Sciences and a member of the Central Committee of the ruling People’s Democratic Party of Afghanistan (PDPA) in the late 1980s. Chairman of the (later to split) Lawyers Association of Afghanistan after 2001, he was elected to parliament from Kabul in 2005, but not re-elected in 2010.
(8) Monarchists were a still strong group in the Emergency Loya Jirga of 2002 where they were pushing for the return of the former king, Muhammad Zaher Shah to be the head of state the country, with a strong prime minister. They were outmanoeuvred by Khalilzad, Brahimi and Karzai. Led by former minister in the Daud republic (1973-78), Aziziullah Wasefi, who is from a rival Kandahari tribe to Karzai’s Popalzai, they tried to make a separate mark in the CLJ, as well, but soon joined the president’s Pashtun camp.
(9) There were two bodies that worked on the constitution. On 5 October 2002, a nine-member drafting committee was established as stipulated by the December 2001 Bonn agreement on Afghanistan. When it finished the work on the preliminary draft, it was replace on 26 April 2003 by a 35-member Constitutional Review Commission that also included six of the nine drafting committee members (with seven women members); Shahrani, the committee’s chairman remained as the chairman of the commission. All members were appointed by head of state, Hamed Karzai.
Although the preliminary draft was not published (it leaked, though – here is a 2003 review of it), it organised a country-wide consultation process, based on a general questionnaire, starting in June 2003, that also included refugees and the diaspora in regional countries, the United States, Europe and Russia. During this process which found widespread interest in the population, further proposals for the constitution were collected, although it is unclear how much of this input was used or how it was integrated into the draft. The final draft was presented after two months’ delay to President Karzai on 3 November 2003. (More information on the whole constitutional process here) and here is the presidential decree on convening the jirga).
An Afghan commentator, at the time, described the reason for the delay as follows (see also here):
The principle factors behind the current delay do not seem to include the issue of public participation or concern about the lack of security. The driving force in the delay appears to stem from disagreements between various factions within the Constitutional Commission and some (especially conservative religious) elements outside the commission. Reports have indicated that various ulama (religious scholars) have demanded, for example, that the term ‘democracy’ be omitted from the new constitution. Others have recommended draconian measures regarding the rights of women.
The members of the Drafting Committee were:
Vice President Neamatullah Shahrani (chair)
Mr Abdul Salam Azimi (former head of Kabul University, now head of the Supreme Court)
Mr Qassim Fazeli (Minister Advisor for Legal Affairs)*
Mr Rahim Sherzoi (Deputy Foreign Ministry)
Mrs Mukarama (judge)*
Mr Musa Asheri (member of the Drafting Committee of the 1964 Constitution)
Mr Musa Marufi (lawyer, presidential advisor)
Mrs Asifa Kakar (judge)*
Mr Sarwar Danish (lawyer, later Minister of Justice and Minister of Higher Education)
* drafting committee members who did not become commission members; Fazeli left early when he was not elected chairman and was not replaced
The additional members of the Constitutional Review Commission were:
Abdul Hai Ilahi
Abdul Haq Wala
Professor Abdul Aziz
Mohammad Tahir Borgai
Dr Yaqub Wahidi
Mohammad Alam Ishaqzai
Qazi Amin Waqad
Nader Shah Nikyar
Mir Mohammad Afzal
Mir Gazargah Sharif
Prof. Mohammad Hashim Kamali
Parwin Ali Majroh
Engineer Daud Musa
Nader Ali Mahdawi
Professor Taher Hashemi
Abdul Hai Khorasani
(10) Suraya Parlika: another leftist and women’s rights activist, made one of Time magazine’s persons of the year in 2001 for her underground girls schools network during the Taleban time. Head of the PDPA’s women’s organisation during the 1980s, she was also the sister of last PDPA foreign minister, Abdul Wakil.
(11) Baloch and Nuristani live in close proximity with Pashtun communities and often speak Pashto. This author was present at one of those meetings, brought in by a sympathetic delegate who said, “Since you speak Pashto, you also belong here.” It was an experience. The opposing non-Pashtun group also heavily pressured other minority delegates to join their boycott.
(12) Hamidullah Tarzi: Member of one of the most famous Afghan families, that of King Amanullah’s mentor and later foreign minister, Mahmud Tarzi, who is often called the father of Afghan journalism. Hamidullah Tarzi worked in government under Presidents Daud, Najibullah (as aviation and finance minister) and Karzai (government advisor).
(13) Abdul Hakim Nurzai: originally a member of the PDPA’s Khalq wing, as a staunch Pashtun nationalist he supported a return of the King in 2001 and set up his own pro-monarchy party in 2002 (it still exists) but later became deputy head of NDS where he had already worked under the PDPA regime.
(14) The Supreme Court was headed from 2001 to 2006 by Fazl Hadi Shinwari (died 2011), a Sayyaf ally.
The CLJ, however, rejected a number of resolutions that would have strengthened Islamic law even further: the enforcement of hijab; that there should be a council for the implementation of sharia; that freedom of expression would be granted in an “Islamic framework” only and that “all aims of the state” (probably referring to the constitution’s preamble) should be within an “Islamic framework”.
(15) The initiators made clear they did not deny the Islamic character of Afghanistan but said they wanted to prevent the continuing misuse of religion by the fundamentalists. The resolution had almost 100 signatories within the first hour, but in the end fell short five signatures of the 150-threshold that would have brought it to a vote. But, as one of the two initiators told the author at the CLJ, a vote would also have been prevented by the fact that, after the threats, none of the signatories dared to present it to the plenary session. Therefore, they demanded a secret vote. Nevertheless, the CLJ chairman brought the resolution up in the plenary session on 1 January 2004. He announced that there had been a request for amending the official name of the country by dropping the predicate ‘Islamic’ proposed by “people weak in faith”. He said, “there will be no vote on this” and called the proposal “un-Islamic” and a “conspiracy of mulhed (apostates) and kafir (unbelievers)” who “will be punished”.
One of the initiators, a former university teacher now living in exile in Iran, was called to a meeting with leading mujahedin leaders Sayyaf and Rabbani who told him that he was working “against Islam” which made him an “infidel” and “communist”. He chose to leave the country again after the jirga.
The majority in the CLJ countered this initiative by amending Art 149, exempting the principles of adherence to the tenets of Islam as well as the form of state (Islamic Republic) from any future constitutional change.
(16) On 17 December 2013, Joya spoke in the CLJ of the “presence of those felons who brought our country to this state”, without naming names but the message was clear to all Afghans, friends and foes. As a reaction, Mojaddedi called her a “communist” and an “infidel” from the plenum. Some delegates occupied the podium and some tried to attack her. Other women delegates and some tribal Pashtuns protected her. She had to be taken into UN protection. The row was stopped by an intervention by Sayyaf who said the mujahedin were willing to forgive the communists but that it, therefore, was also not acceptable, to accuse the mujahedin of being war criminals and, in fact, people accusing the mujahedin of being criminals were criminals themselves. After Sayyaf’s speech, the chairman first ordered the expulsion of Joya and even asked for the assistance of the security guards, then he ‘forgave’ her, only to retract this under pressure from some delegates, then asked her to come up to the podium to ask for forgiveness herself and, after she refused, finally ’pardoned’ her. Joya returned to the session.
In May 2007, she was expelled from the Wolesi Jirga (to which she had been elected from her home province Farah in 2005 and her photo removed from the wall that shows portraits of all members) for derogatory remarks about the house, also including attacks against ‘warlords’. This time, it was for good.
This article was last updated on 9 Mar 2020