New Afghan Constitution Offers Hope, Faces Challenges

Afghanistan's loya jirga, or grand tribal council, has adopted a new constitution following three weeks of vigorous debate. The new basic law, which provides for a directly elected president and bicameral legislature, paves the way for elections in mid 2004.

The 502-member loya jirga approved the constitution on January 4. The document seeks to blend democratic ideals into the country's traditionally Islamic fabric. It emphasizes the primacy of civil law in the country, which will now be officially known as the Islamic Republic of Afghanistan. At the same time, it stresses that the country's laws should not contravene the main tenets of Islam.

The constitutional loya jirga survived intense wrangling among conservatives, reformists and the country's various ethnic groups. A major source of debate was the issue of executive authority. The notion of a strong Afghan presidency faced stiff resistance. Although in the end, the constitution granted the chief executive broad powers, some observers still question whether the president will have sufficient authority to dilute the power of warlords, who control many Afghan regions, and to counter the lure of radical Islam.

"Is this constitution perfect? Most probably not. Will it be criticized? I fear it will, both inside and outside Afghanistan," Lakhdar Brahimi, the United Nations special representative to Afghanistan, remarked at the loya jirga's closing ceremony. "Nevertheless, I think that you [loya jirga delegates] have every reason to feel proud of what you have achieved."

Up until almost the very end, the result of the constitutional debate seemed in doubt. On December 30, the discussions appeared stalemated. Former president Burhanuddin Rabbani led roughly 100 of 502 delegates to boycott procedural votes, spurring the chairman to storm out of the meeting. Rabbani, an ethnic Tajik, resisted constitutional language on the creation of a strong presidency. The row ended with a last-minute compromise.

On January 4, Interim President Hamid Karzai, who is the front-runner to win the presidential vote held under the new constitutional guidelines, told delegates that he would learn to speak Uzbek and that the constitution would grant language rights to Tajiks and other ethnic minorities who dominate northern portions of the country. [For background see the Eurasia Insight archive]. These rights, and a declaration making Afghanistan an "Islamic republic," diluted complaints about Karzai's desire for a constitution that featured centralized authority.

Interpreting Islamic principles could rekindle these complaints, especially since the document leaves room for relatively strict uses of doctrine in law. [For background see the Eurasia Insight archive].

During the proceedings, some delegates worried that weaving religion into the constitution would weaken it. "Islam should be separated from politics," said a delegate from an Iranian refugee camp who asked for anonymity. "The delegates don't know what's going on in Iran. They made a few official trips to the country, met mostly the conservative faction, and now want to copy them."

Rabbani dismissed concerns that Islamic law would undermine human rights. "Human rights [law] is not new," he told EurasiaNet in December. "Islam talked about it 1,400 years ago. We believe in human rights and such things should not worry foreigners, or make human rights activists think we are against it."

The constitution binds Afghanistan to international human rights laws, but stipulates that such laws cannot override Islamic principles. It also affirms women's equal status and accords them 25 percent of seats in the lower house of the new bicameral parliament. Such provisions, some observers believe, may end up clashing with conservative Islamic views. For the time being, however, the constitution enjoys universal support. "We accept the rights of women as defined by the Koran," said Abdul Rassul Sayyaf, who heads a conservative party called the Islamic Union of Afghanistan. Sayyaf has been an outspoken critic of Karzai in the past.

Brahimi in his closing comments sought to bolster support for broader rights for women. "The people who have suffered most, the people who have sacrificed most are our women," Brahimi said. "We must respect our women, we must recognize their rights and we must be proud to have them on our side to rebuild the country."

The document also offers Karzai official authority over the nation's defense establishment. This provision may dampen warlords' claims to legitimacy. However, constitutional statutes do little to undermine the fact that warlords are often one of the main sources of employment in their respective regions.[For background see the Eurasia Insight archive].