Afghanistan Analysts Network – English

Political Landscape

Innovative Jirga-ism 2 or: The rule of bending the law

Thomas Ruttig 4 min

The 2030 jirga delegates have come into town now, and their sessions are to start today (Wednesday). Interestingly enough, it had been unclear until recently, at least to some people, how exactly the event was called they are to attend. This has repercussions to which authorities the meeting will have exactly – an issue still open. In a follow-up to an earlier blog on the issue Thomas Ruttig, Senior Analyst at AAN, looks at this more than semantic problem.

The banners and advertisement boards are up since quite a while, announcing the event that is to start today, 15 November. They clearly read, in both national languages: Loya Jirga-ye an’anawi(Dari) resp. Duda’iza Loya Jirga (in Pashto), i.e. ‘Traditional Loya Jirga’ – duda-iz(a), from dud(tradition), one of many neologisms that are slipped into Pashto of late.
So far, so clear. But then we were in for a surprise. Someone intimately involved in the jirga’s preparation told us two weeks ago: No, no, this is not a Loya Jirga, this is just a ‘traditional’ one, without ‘loya’. The explanations given was convincing: For a Loya Jirga, the person – trained in law – said, representatives are elected, while for a ‘traditional’ jirga they are selected, i.e. picked and appointed by the government. Secondly, a Loya Jirga takes decisions while a traditional one is a consultation mechanism ‘with the people’. In this context, reference was made to Article 65 of the constitution that the President can call a ‘referendum’ on important national, political, social as well as economic issues.

The process determining this year’s 2030 delegates (we have described it in more detail here) was clearly a selection. And we have quoted the jirga preparation commission’s spokeswoman Safia Sediqi (from her interview with Kabul daily 8 Sobh, 1 November) already in our last blog:

‘the decisions of this particular jirga are not binding. The traditional loya jirga will only provide the Afghan government with general advice.’

So, according to the usual definition, this is not a Loya Jirga. But it is called a Loya Jirga. That’s all not only a far cry from a ‘referendum’, but – if I may say that as a non-Afghan – it doesn’t have much to do with Afghan tradition. But why, then, it is called Traditional Loya Jirga (TLJ) on the banners? Is this disregard of tradition usually proudly upheld, legal sloppiness or outright manipulation?

Maybe, a bit of all of that.

The first part, on tradition, is the easiest to explain. The century-old tradition of Loya Jirgas is a myth constructed in hindsight, by those who want to create a narrative of Afghan nationhood. The institution of the Jirga was one element of this.

Of course, there had been jirgas for many centuries, if not longer. But written records on Loya Jirgas are thin. Clear is that Reformer-King Amanullah made it an institution in 1922. Of the pre-1973 Loya Jirgas, only Amanullah’s in 1924 and that of 1964 (which made Afghanistan a constitutional monarchy) have been well recorded. Before that, most things are covered by the mist of history which opens the way to the imagination of Afghan nation-builders. Anthropology professor Muhammad Jamil Hanifi, for example, writes about the ‘classical’ Afghan Loya Jirga, the ‘coronation’ of Ahmad Shah Abdali (later Durrani) in 1747 after carrying out extensive (and arguably the best) study of the sources*:

‘The earliest and most comprehensive pre-colonial account of Ahmad Khan’s rise to political power is provided in a chronicle written during 1753 – 1774 by Mahmud al-Hosaini al-Munshi ibn Ibrahem al-Jami, the court historian of Ahmad Khan Abdali. This account makes no mention of an organized assembly in which the election and coronation of Ahmad Khan took place.’

(See also an earlier blog on this issue, here.)

Secondly, legal sloppiness: The Afghan government has a record of going around laws that turn out to stand in the way of smooth proceedings. Just remember the last election cycle when dates where shifted around and legislative periods changed at political convenience (not to mention the year-long post-electoral crisis which also was triggered by some judicial innovations). To donor governments, this might have looked like peripheral stuff in a much more important process that needed to be kept up. But still – constitutional stipulations were bent. Ignorance of the rule of law, and international indifference about it, has become a typical feature of post-2001 Afghanistan. No wonder that one of the Taleban’s success stories, at least in the eyes of some local communities, is the law being implemented.

The Afghan government also has not been very strong about terminology. A member of the preparatory commission for the jirga, former lawmaker Hillaluddin Hillal, told Mandegar daily on 17 October that this jirga had to be a ‘traditional’** one – as opposed to a constitutional – because you can’t hold one as stipulated in the constitution because of the lack of elected district councils. That is the case, indeed. But why invent a term that has never been used before and is also not mentioned in the constitution? There certainly is an element of manipulation in it, in particular when you see this in the context of the jirga’s agenda deliberately left nebulous as described in our previous blog (read it here).

One factor is, maybe, that the government thinks that this is also a show for the foreigners, to put a bit of pressure on the Americans who want their Strategic Partnership Agreement (or Declaration) and need to made pay for the Afghan signature under it. Clear words to the government in Kabul not to ‘violate the nation’s interest’ in such a document by a ‘traditional’ assembly of 2030 elders and other delegates will certainly impress them.

So it is also not surprising that our legally trained source, quoted at the beginning, was so sure about the jirga not being a Loya Jirga, being naïve enough to believe in what has been a kind of national consensus for decades. Sacred traditions are now as easily bent in Afghanistan as the law is.

* M. Jamil Hanifi, ‘Editing the Past: Colonial Production of Hegemony Through the “Loya Jerga” in Afghanistan’, Iranian Studies, vol 37, no 2, June 2004, p 301.

** An interesting case is the 1941 jirga. Convened by the King to give an answer to the WWII allies who had demanded the rendition of German and Italian citizens working in the country, it rejected that demand and simply sent those people home, through the Soviet Union. Afghanistan declared its neutrality in the war. The only record of this jirga, at least as far as I know, is a 6-page summary in the De Kabul Kalanay of that year, a government-issued yearbook. So far, this jirga had been counted by Afghan historians among the long line of Loya Jirgas. But recently I read in an Afghan newspaper (unfortunately I lost the reference but will continue chasing it) that, if I remember correctly, a member of this jirga’s PrepComm also called the 1941 jirga a ‘traditional’ one, a characterisation I never saw used before. I would be grateful to hear on which bases this assessment was done.


Government Jirga