President Karzai announced during a press conference on 31 May that a Loya Jirga was due ‘in the coming days’ (my emphasis) to discuss ‘the strategic relationships with the U.S, [that] all the people of Afghanistan from all different parts will gather together[,] view their options and the final decision will be made by Afghans’. That must have rung some alarm bells. AAN’s Thomas Ruttig explains why and wonders what a ‘traditional’ Loya Jirga is.
Indeed, preparations for another Loya Jirga are under way. On 6 June, a 32-member preparatory commission for the Loya Jirga was established and its members’ names were published in the Kabul-based daily Hewad*. Ex-Interim President Prof. Sebghatullah Mojaddedi already had been appointed its chairman in late May, in what seems to have been a move to compensate for him not having been made head of the High Peace Council. A few days later a commission was established that is to take the meeting’s security. It is composed of representatives from MoD, MoI, NDS, the Council of Ministers’ secretariat and the presidential guard and the deputy interior minister for security, Abdurrahman Rahman, as its head (Hewad 4 June 2011).
There is considerable nervousness in the international community, which has been caused by the context of the last days’ political discussions. It coincided with Karzai’s announcement that his and, in general, Afghans’ patience was running out about Afghan civilian lives lost during NATO bombardments of private houses (this time it was not about night raids which had driven many Afghans to the streets in recent weeks) and him threatening to take unilateral action. As he said at the same press conference:
‘Especially these operations that have been conducted in the past have to be stopped, period! [… T]he bombardments of Afghan homes have to be stopped. If not then Afghans will take the decisions on their own. […] I want to tell you that Afghanistan is not an occupied country.’
A Loya Jirga seems be the perfect instrument to take such ‘decisions’ and legitimize them. After all, the institution called the Loya Jirga is regarded by Afghans, as it is therefore laid down in the constitution, as ‘the highest manifestation of the [will of the] people of Afghanistan’ (Art. 110)** and is convened in order to ‘take decision on the issues related to independence, national sovereignty, territorial integrity, and supreme interests of the country’ (Art. 111, quoted after the translation on this website).
According to Art. 64/7, the President can convene such a Loya Jirga.
Under normal circumstances, a Loya Jirga cannot be convened within a few days. The organisation of the Emergency Loya Jirga (ELJ) in 2002 and the Constitutional Loya Jirga (CLJ) in 2003/04 took six months each, with district mobilisers gauging which social and political groups existed and needed to be represented in any given district and a two-step selection/election process throughout the country in the case of the ELJ. In those days, security was still permissive. While both the ELJ and CLJ were far from being perfect – mainly due to manipulation by the US*** and on the part of what are nowadays euphemistically called ‘local power brokers’ -, but it will be difficult to emulate their initial degree of representativeness today. By the way, at another occasion, on 11 April, Karzai had said that the Loya Jirga will take place ‘in the coming two to three months and Mojaddedi, as the head of the prepcom, said that it would be held after Ramadan, i.e. in early September.
Secondly, the negotiations about the strategic partnership agreement are still ongoing. It seems very unlikely that a Loya Jirga will take the final decision about it; after all, it is an agreement concluded between governments. A Loya Jirga would rather come up before with conclusions that call on the government to negotiate an agreement along certain lines.
Instead, a Loya Jirga will probably be used to put pressure on the civilian casualty issue. Although Karzai has used the recent farewell visit to Kabul of outgoing US Secretary of Defence Robert Gates to sound a few reconciliatory notes:
‘We humbly ask that the bombardments and raids over our houses not be repeated. While we are allies, the people do not wish to see their houses being bombarded and innocent lives being lost,’
those who argue that Karzai’s threats of unilateral action and the Loya Jirga preparations are designed to get more concessions out of the US side might have the point.
With regards to the said Loya Jirga, the Afghan government, however, has brought up another question which seems to be awkward. After the President repeated in a speech on the occasion of 8 March International Women’s Day in Kabul that a Loya Jirga (and the parliament) would have the final word about such an agreement, a presidential spokesman said that, however, ‘it was too early to say whether it would be a full court loya jirga, like the one convened in 2003 to approve the Afghan constitution, or more like the consultative “peace jirga” called last June to consider peace talks with the Taliban‘. Later, both Karzai and National Security Advisor Rangin Dadfar Spanta (in parliament) spoke of a ‘traditional [‘an’anawi] Loya Jirga’.
But what does traditional Loya Jirga mean? Are their different forms of Loya Jirgas, ‘traditional’ and non-traditional ones?
Afghan law (the constitution) only knows one form. There it is laid out when a Loya Jirga can be convened (as already mentioned) and who should participate****.
Already in the past, the President’s men have been rather innovative when it came to similar meetings. One could argue that a – well – nation-wide jirga that had to decide about a strategy to talk with the insurgents would be a matter of ‘supreme interest of the country’. But not a Loya Jirga was convened in 2010 (although many Westerners thought so), but a Consultative Peace Jirga (De sole mashwarati jirga) after which the High Peace Council (HPC) was appointed.
The term – consultative jirga – is a contradiction in itself. A jirga, according to the Pashtun tribal codex from which it derives, is a consensus organ the decisions of which are binding. A shura (mashwarati is the adjective to this noun) is, as the word says, ‘consultative’, i.e. its decisions are not binding but are left to the final decision of someone higher up, here the President.
Two examples that this was well understood by the Afghan government but, again, not the Westerners: The HPC was appointed by the President after the Peace Jirga, not by this jirga itself. And the reportedly open discussions in its working groups did not make it into its final declaration which had been written before and not changed just because of some democratic utterings.
It is important to make a conceptual distinction between jirgas, in general, and Loya Jirgas. The former are a (tribal Pashtun) grassroots conflict resolution mechanism, and no standing body. They are convened when necessary, on the basis of what ‘every Pashtun’ knows how it work and who should sit it in. (If they are not sure, there are so-called jirgadars, those who know the principles and preserve this knowledge.
The Loya Jirga as an institution, in contrast, is an invention of modern times, a quasi-parliamentarian body representing all ethnic and social groups of the country. It was invented by Amir Habibullah in 1915 when he ‘invited 540 delegates from all parts of the country to Kabul in order to explain[!] the reasons for Afghanistan’s neutrality during the First World War’*****. It was institutionalised by the reformer-king Amanullah who, in 1921, convened a Loya Jirga that led to the country’s first quasi-constitution two years later (called nezamname-ye asasi) and his successor Nader Shah who created the two-house parliament in 1931 so that from then onwards Loya Jirgas were looking like the one described in the current constitution.
Later Loya Jirgas endorsed Afghanistan’s neutrality during WW II, too, and the 1964 constitution that turned Afghanistan from an absolute into a constitutional monarchy. Later, less legitimate regimes like that of President Daud and the PDPA tried to use this instrument as well. Finally, the anti-Soviet resistance – then still broader than just the 7+1 Islamisttanzims – put a ‘provisional’ one (momasela) together in May 1980 in Quetta but it was sabotaged by the ISI and those very Islamists and remained inconclusive.
Although Afghan mythology says something else, all other ‘Loya Jirgas’ before – from the ones that (s)elected Mir Wais Hotak (1709) and Ahmad Shah Durrani (in 1747) as Afghan kings in Kandahar might be given the same term but they looked different******, were much smaller bodies of tribal elders. After all, the early 18th century was not a time when the Pashtun tribal aristocracy was interested in representativeness. An equilibrium between the strongest tribes was needed to produce legitimacy for the ruler.
Academicians also point to the fact that in most Loya Jirgas – before and after Amanullah – the outcome used to be designed in advance, making them essentially rubber stamp bodies with a bit of (tribal-)democratic window-dressing. This ‘tradition’ was used again during the ELJ and CLJ in 2002 and 2003. When Karzai now wants to go for a ‘traditional’ Loya Jirga, this points to hand-picked and/or manipulated bodies like those or the 2010 Peace Jirga.
For these very good reasons, Afghans, amongst them ‘the opposition’ which is already crying foul, have their doubts about such a ‘traditional’ Loya Jirga. Former Wolesi Jirga speaker Yunos Qanuni said in parliament that: ‘I am concerned about the traditional Loya Jirga. My concern is not about specific points, my concern is that there is an ongoing process to kill democracy and move back to traditional institutions’. Hafiz Mansur, an outspoken Kabuli MP, also with Jamiat background, stated that parliament had sufficient authority to approve the Afghan-US agreement, that there even is no need to hold a ‘legal Loya Jirga’ for it and that such a proposal is just meant to marginalise parliament (Hasht-e Sobh, 8 June).
The ‘Consultative Peace Jirga’ could even be seen as a test-run on how to convene such a kind of ‘traditional’ Loya Jirga. We have reported about it, and how its representatives had been handpicked by Karzai confidents, how its proceedings (with careful appointment of the heads of the discussion groups) and the final declaration had been scripted before the event. Western governments, of course, were delighted about that jirga, first because it radiated progress on the ‘talking to the Taleban’ front, towards a political settlement, and secondly, well, because they like any gathering with a variety of turbans, beards and colourful local garb, assuming that this must be ‘traditional’ and therefore legitimate, forgetting that behind any jirga, and shura for that matter, there is a lot of politics.
Qanuni et al also assume that Karzai has a plan and might start rewriting the constitution. After all, a Loya Jirga is sovereign and can decide its own agenda. As it happened in 1928, Amanullah’s second Loya Jirga when the leader of the Mojaddedi family collected 400 signatures that called the King’s reforms ‘anti-Islamic’, lead to a tribal uprising and, finally, Amanullah’s fall from power only a year later.
(*) Apart from chairman Prof. Mojaddedi they are:
1 – Muhammad Anwar Ishaqzai
2 – Haji Din Muhammad
3 – (Mrs.) Reda Azemi
4 – Wakil Abdul Jabar
5 – Helaluddin Helal
6 – Sadeq Mudaber
7 – Nurullah Sharokhi
8 – Hayatullah Balaqi
9 – Nawroz Ali Etemadi
10 – Wakil Haji Muhammad Abdo
11 – Wakil Baz Muhammad Jowzjani
12 – Wakil Al-Haj Keramuddin Rezazada
13 – Haji Aluk Kakozai
14 – Owtar Singh
15 – Abdul Khaliq Hussaini
16 – Shah Aqa Sediq Mojaddedi
17 – Senator Baz Muhammad Khan Zurmati
18 – Khaled Faruqi
19 – Alam Rasekh
20 – Khalifa Qezel Ayaq
21 – (Mrs.) Gulalai Atsekzai
22 – Sayed Muhammad Amin Tareq
23 – Mawlawi Khodaidad
24 – Nematullah Sharani
25 – Sayed Hamed Gailani
26 – Dr Humayun Azizi
27 – (Mrs.) Hawa Alam Nuristani
28 – (Mrs.) Safia Sediqi
29 – Muhammad Aref Nurzai
30 – Shahzada Massud
31 – Humayun Shinwari
11 of the 32 member also sit on the HPC.
(**) The 1964 constitution did not have this yet. It was much more technical and just regulated the composition and powers of the Loya Jirga.
(***) Read more detail about this in one of our earlier blogs.
(****) ‘(1) the members of the National Assembly [i.e. both houses of parliament], (2) the chairpersons of the provincial and district councils.
The ministers, Chief Justice and members of the Supreme Court can participate in the sessions of the Loya Jirga without the right to vote.’
Legally, there is only one hurdle to such a ‘full court’ Loya Jirga: The district councils (DC) and their chairman have not been elected yet. Maybe, that is the reason why the President and his men want to go for a ‘traditional’ Loya Jirga. But also for such an approach there is a hurdle, or better, a precedent: elected members from the district councils were also supposed to sit in the Upper House, the Meshrano Jirga (or Senate). Therefore, a stop-gap solution had been invented for the proceedings in the first 2005-10 Senate: the DC delegates’ places were ‘temporarily’ filled by a second set of delegates elected from the provincial councils (PC). But how long is ‘temporary’? In the 2010, there are still no DC representatives. But if the President’s camp has accepted this in this case, they cannot really argue that a ‘constitutional’ Loya Jirga cannot be convened because the DC representatives are still missing. A ‘full court’ constitutional Loya Jirga is possible.
(*****) See: Christine Noelle-Karimi, ‘The Loya Jirga – An Effective Political Instrument? A Historical Overview’, in: Christine Nölle-Karimi/Conrad Schetter/Reinhard Schlagintweit (Ed.): Afghanistan — A Country without a State? Frankfurt: IKO Verlag, 2002. This is possibly the most authoritative source about this issue. I also recommend: M. Jamil Hanifi, ‘Editing the Past: Colonial Production of Hegemony Through the “Loya Jirga” in Afghanistan’, Iranian Studies, volume 37, number
2, June 2004.
On jirgas, in general, read Lutz Rzehak’s AAN report about the Pashtunwalihere.
(******) Number-wise, the first Loya Jirga happened in 1865, under Amir Sher Ali Khan, with 2,000 participants. Interestingly, it was about him defending his power against the claims of a rival brother.
This article was last updated on 9 Mar 2020