|
|
UN Office for the Coordination of Humanitarian Affairs |
AFGHANISTAN: Special report on the new constitution
KABUL, 2 June 2003 (IRIN) - In the relatively quiet Wazir Akbar Khan neighbourhood of the Afghan capital, Kabul, 35 Afghan men and women are deliberating on one of their country's most important documents. These members of the constitutional commission are reviewing the first draft of the new supreme law before embarking on a wider consultation process this month.
In this special report, IRIN puts the process into perspective, highlighting the key political questions in Afghanistan as it seeks to bring about reconstruction and development.
PROCESS
The Bonn agreement on Afghanistan's political future in December 2001 envisaged the formulation of a new constitution in two years' time. Faruq Wardak, the director of the constitutional commission's secretariat, told IRIN that the constitution making process would be in three stages, the first of which had already been completed with a nine-member drafting commission having presented the first draft constitution to President Hamid Karzai in March.
"They have completed this after studying the past Afghan constitutions, the constitutions of the Islamic world, the constitution of countries with similar postwar conditions as ours, and the constitutions of the developed countries," he said, adding that the drafting commission had also consulted a broad cross section of the Afghan public.
The country's first constitution was adopted in 1923 when the reformist king, Amanullah, declared independence from Britain. In 1933, King Nadir Shah gave the country another constitution, only to be replaced by a more democratic one in the reign of his son, Muhammad Zahir Shah, in 1964.
As the Bonn agreement draws heavily from this last constitution, it was partially restored last year. Subsequent regimes in the 1970s and 1980s also gave Afghanistan new constitutions, but they failed to gain universal acceptance because they were unsuccessful in evolving a genuine popular process, and these regimes were also seen as foreign puppets.
The completion stage of the constitution is under way with a constitutional commission working under the chairmanship of Vice-President Nematullah Sharani, who also headed the drafting commission. The 35-member representative body of Afghan society comprises experts in constitutional law, Islamic law (shari'ah), sociologists, economists and tribal leaders.
According to Wardak, this commission will further analyse the first draft, and by the end of this month complete the formulation of the final version, after which it will consult Afghans inside the country and Afghan refugees in both neighbouring Pakistan and Iran. This public consultation will last for two months, and in August all the recommendations will be incorporated in the draft.
The first public draft of the constitution will be published in September in both Afghan national languages, Pashto and Dari, and distributed nationwide. The secretariat of the constitutional commission has already established eight offices across the country to inform the public about the process. "Once the people realise how important the constitution is for their individual, family and national life, they will participate in the process," he said.
A constitutional Loya Jirga [grand tribal council] in October will be the third and final stage of the constitution-making process and the climax of the approval phase. "We hope that this will be a broad representative body of Afghans and will be convened in Kabul for 25 days," Wardak said.
However, Afghanistan experts remain concerned about the process. "The process is short. It would have been better to have a longer process for public consultation on all the issues to be discussed in a serious manner," Barnett Rubin, the director of studies at the Center on International Cooperation in New York University, told IRIN. "We can just hope that they manage to pull it off."
Rubin maintained that many security issues needed to be settled before going ahead with the key procedure of adopting the new supreme law. "Security is the key [to the success of] not just the constitution but also the whole Bonn process, reconstruction and everything," he said, noting that the US and European countries should realise that they had a duty to provide the Afghan government with enhanced security assistance.
He suggested that security could be ensured either through extending the operations of the UN-mandated International Security Assistance Force beyond the confines of Kabul, as the UN special envoy to Afghanistan, Lakhdar Brahimi, had recently recommended to the UN Security Council.
An alternative measure, Rubin noted, should include changing the role of the Provincial Reconstruction Teams (PRTs) to render them much more seriously focused on providing security outside Kabul rather than carrying out a few rehabilitation projects. PRTs are groups of the US-led coalition forces stationed in some provincial capitals to provide Afghans with humanitarian and development assistance.
Abdul Rasul Amin, a political expert and former education minister, told IRIN that before embarking on a major political course such as constitution making, people needed to choose a political system for their country.
"We need to have a referendum on whether we should have a presidential form of government, constitutional monarchy or a parliamentary type democracy. Only then an attempt at [formulating a] constitution will work," he said.
"Constitution is not a compilation of papers; it should reflect the views of the people and give them a political system under which they can live peacefully," he maintained, noting that the first draft of the new constitution only hinted at one form of government, leaving little or no choice for Afghans to decide on their future political arrangements.
GOVERNMENT AND RIGHTS
Over the past century, Afghanistan had seen absolute monarchy, constitutional monarchy, republicanism, foreign occupation, a variety of communist and socialist governments, and then a range of Islamist governments culminating with the hardline Taliban, ousted by the US-led military coalition in 2001.
Abdul Salam Azimi, the vice-chairman of the constitutional commission, told IRIN that the new supreme law provided for a democratic form of government with an elected president heading the executive. "There will be a separation of powers between the executive, the legislature and the judiciary," he said, adding that there would also be a parliament and a prime minister.
Azimi maintained that the system would be unitary with a strong central government, but that it would devolve certain powers to the provinces. "All these are the features of the preliminary draft, and nothing is final yet," he said
He added that the new draft constitution would be in full conformity with international law and international human rights standards. "We have tried to balance Afghan traditions with international norms," he said.
Women want the new constitution to reflect their needs. "Islam has given tremendous rights to women, but in many Muslim countries these rights are not accommodated into the laws," Tajwar Kakar, a deputy minister for women's affairs, told IRIN. She pointed out that Islam called for universal education for both men and women and that this should be reflected in the new constitution.
Kakar maintained that all forms of discrimination against women should be made illegal. "From a women's perspective, the new constitution should address such issues and ensure our rights in all spheres of life," she said.
ISLAM
Islam remains one of the primary motivating factors for political action in Afghanistan, and much of the political discourse is still dominated by rhetoric around religion. According to Azimi, the religious question has been resolved in the draft constitution, but no details of how the difficult issue was resolved are being made public yet.
The sensitive issue of religion has put strains on the commission's work. "Western minded people say mullahs are making the constitutions," Wardak said. "The fundamentalist elements say the Americans are making our constitution."
Rubin maintained that although every constitution in Afghanistan had defined Islam as the country's religion and, as such, this posed no controversy. However, the key question demanding an answer was what the constitution would say about the relationship between Islam and legislation? Would Islam be the sole source of legislation? Would the basic principles of Islam or the more specific provisions of the shari'ah govern future legislation?
More than two decades of war have also influenced thinking in the country. "People in Afghanistan are Muslims, they don't think that they need their government to make them Muslims," Rubin said, noting that the people were exhausted, tired of groups and factions with ideological agendas trying to force systems on them.
Hardline Islamists share such views. "If you look at the former constitution [1964] and the make-up of the Afghan society, you will see a very clear role for Islam, and that's what we are demanding," a leading conservative Afghan cleric, who is the country's chief justice, Fazl-e Hadi Shinwari, told IRIN. "We are not demanding any new role for Islam, because it's an integral part of our culture and history," he said.
Rubin observed that another debatable question was the newly introduced notion of the judicial review of legislation and acts of the government. "That has never existed in Afghanistan before, and I think people do not necessarily appreciate the dangers it poses," he said.
He added that the idea might sound progressive, but it had risks. "If a group of unelected people decides whether anything that the government does is consistent with the basic principles of Islam, which no one has defined, that gives them tremendous amount of power and it is very tempting to use it in political ways," he said.
CONCLUSION
A new supreme law represents a key step in the nation-building process. Experts maintain that the implementation of the new constitution would be perhaps the most critical test of the Bonn process. In a country riddled with tribalism, ethnicity, poverty, and warlords running their own fiefdoms, laws could mean little without broad internal consensus and sufficient international backing.
Meanwhile, in a joint press statement on Sunday, the UN and the Afghan Independent Human Rights Commission urged all concerned to ensure an environment free of threats and intimidation during the consultations on the new fundamental law scheduled to begin this week.
"All participants in the process, men and women, regardless of their ethnic origin, religious belief or political affiliation, should be able to express themselves freely and openly on the major constitutional issues about which they are concerned and regarding the kind of constitution they want for Afghanistan," the UN spokesman, Manoel de Almeida e Silva, said.
[ENDS]
Themes: (IRIN) Governance
[ENDS]
The material contained on this Web site comes to you via IRIN, a UN humanitarian information unit, but may not necessarily reflect the views of the United Nations or its agencies. If you re-print, copy, archive or re-post any item on this site, please retain this credit and disclaimer. Quotations or extracts should include attribution to the original sources. All graphics and Images on this site may not be re-produced without the express permission of the original owner. All materials copyright © UN Office for the Coordination of Humanitarian Affairs 2003
|
NEWSLETTER
|
| Join the GlobalSecurity.org mailing list |
|
|
|
