Afghanistan - Government - Islamic Republic of Afghanistan (2004–2021)

Following nationwide election of delegates, the Constitutional Loya Jirga was convened on 14 December 2003 and successfully concluded after 22 days with the unanimous adoption of the new constitution. 502 delegates from all over Afghanistan participated, 344 of whom had been elected by the Emergency Loya Jirga district representatives. 103 were women, over 20 percent of the total at the Constitutional Loya Jirga. With the completion of this exercise, Afghanistan can be said to be equipped with a progressive constitutional framework, which fosters the establishment of the rule of law as well as national unity. The new constitution articulates a number of values that are not only shared among the vast majority of Afghans, but also with the international community at large.

Afghanistan's Constitutional Loya Jirga approved a 162-article constitution on 04 January 2004, establishing a presidential system of government with a bicameral legislature. The president, both chief of state and head of government, was directly elected to a maximum of two five-year terms. The lower house of the National Assembly, Wolesi Jirga (House of People) was to be comprised of a maximum of 250 persons directly elected to five-year terms. And the upper house, Meshrano Jirga (House of Elders) was made up of representatives from provincial and district councils, as well as presidential appointees.

Behind-the-scenes negotiations led to a breakthrough on disputes that had threatened to derail the assembly after 16 days spent amending and debating a document to replace the revised 1964 constitution. The main split at the assembly was between the Pashtun supporters of Karzai's government and the Tajiks, Uzbeks, and other minority ethnic groups led by former President Burhanuddin Rabbani, Uzbek Commander Abdul Rashid Dostum and Islamic conservative Abdul Rabb al-Rasul Sayyaf. One issue that delayed the agreement was over the status of the national language. Dari and Pushto would be the two official languages, but the tongue of northern minority groups were been granted official status in their respective regions. The formal ratification of the country's seventh written constitution fulfilled a major goal of the internationally sanctioned Bonn process, paving the way for democratic presidential elections.

According to the 2004 CIA World Factbook, the constitution "highlights a strong executive branch, a moderate role for Islam, and basic protections of human rights." The June 2004 issue of "Peace Watch" by The United States Institute of Peace calls the constitution, "the most liberal...in the region stretching from Syria to Pakistan." The constitution states that Islam was the "religion of the state" and that "no law can be contrary to the beliefs and provisions of the sacred religion of Islam." The constitution and other laws and policies restrict religious freedom and, in practice, the government enforced these restrictions. In 2004 the constitution accorded both Shia and Sunni Islam equal recognition. The constitution proclaims, "Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of law."

The adoption of a new constitution in January 2004 and the election of Hamid Karzai as president in October 2004 were considered major advances in Afghanistan’s fragmented political life. However, day-to-day control of the provinces proved difficult both before and after the election, and substantial regional power centers remained in 2008. After the first National Assembly was seated in December 2005, the balance between the executive and legislative branches was uncertain, and Karzai was obliged to award cabinet positions to key regional warlords. The role of Islamic precepts in governance remains extremely controversial, particularly in the judicial branch. In March 2008, the United Nations continued its policy of one-year renewals of its Assistance Mission in Afghanistan, designed to coordinate international aid and guide the rebuilding process.

Rival candidates Abdullah Abdullah and Ashraf Ghani each claimed victory following the 14 June 2014 presidential runoff. The two candidates were able to agree on the need for an overhaul of the political system. No matter who comes out on top in the vote count, the runner-up would be able to choose the "chief executive" of the new government. After two years, the constitution would be amended to allow for a parliamentary system to be introduced. At that time, the chief executive post would effectively become that of the new prime minister.

The presidential system, forged from the American model, would be replaced by a French-style parliamentary system in which the president's role would be checked by those of an empowered prime minister. In theory, the formation of such a parliamentary system should enshrine a more equitable distribution of power. But it promises to be a risky and protracted undertaking. It creates safety net for the loser, to make] sure that the losing side doesn't feel disenfranchised and doesn't face a winner-takes all situation.

A loya jirga that has binding legal authority can only convene if there are elected district councils. No district-council elections have been held, making a constitutional loya jirga impossible, although there have been suggestions that they could be held in tandem with parliamentary elections slated for 2015.

Rival Afghan presidential candidates pledged during a visit by US Secretary of State John Kerry on 08 August 2014 to resolve their election dispute and form a “national unity government” before NATO leaders gather in Britain early next month to discuss Afghanistan's future. The political deal brokered by the US secretary of state sought the creation of a new chief executive position in the governing system to accommodate the losing candidate in the future administration. Ghani and Abdullah disagreed on the nature of a national unity government verbally agreed to in July. Ashraf Ghani told the BBC 09 August 2014 that this was not a power-sharing agreement. "It was not power-sharing in the sense that ministries are going to be allocated" by one or the other leader, he said. He added that the main reason that Mr Kerry had to return was to get clarity on this. Mr Ghani said "misperceptions" had grown that, with the creation of the role of chief executive for the defeated candidate, Afghanistan was weakening the power of the president, and moving towards a parliamentary system. But the other candidate, Abdullah Abdullah, said "there was an element of power-sharing" in the deal.

Speaking to a group of foreign reporters at his Kabul headquarters on August 12, Ghani said: "Dual authority was not possible," adding, "The position of the chief executive will solely depend on the discretion of the president." Ghani also said that the framework agreement brokered by Kerry had been written in English and was "not a document prepared for signing," adding that he would "not sign a document in English on Afghan soil."

Afghan presidential candidate Abdullah Abdullah rejected the results of a United Nations-led vote audit aimed at clarifying who won the country's June 14 runoff election. Abdullah insisted 08 September 2014 that he'd won, adding that talks with rival Ashraf Ghani on forming a unity government were deadlocked. His announcement dashed hopes that a new president could be inaugurated soon.

Executive Branch

The president and two vice presidents are elected as a ticket by popular vote to five-year terms. The first such election under the 2004 constitution occurred in October 2004. President Hamid Karzai, who was elected at that time, was both chief of state and head of government. The president appoints ministers, subject to the approval of the Wolesi Jirga (People’s Council), the lower house of the National Assembly. Following a reorganization in early 2006, the government included 25 ministries; appointments to these ministries have been distributed among influential regional and military groups. The reorganization of 2006 reduced the number of ministries by two and shifted key individuals.

Critics, such as the Tadjik-dominated opposition United Front argue the current presidential system too easily allows a single ethnic group to dominate the country. Karzai, they claim, has systematically used the presidency to favor Pashtuns. Afghanistan's security uncertainties, governmental tradition and culture would predispose any leader towards husbanding power primarily among members of his own ethnic group. But a parliamentary system and elected provincial governors, district administrators and mayors would counter this predisposition and forestall resentment among non-Pashtun ethnic groups by offering them more political opportunities than the winner-takes-all 2004 Constitution.

The current constitution has over-concentrated decision-making to whoever was President of the country. The Afghan President appoints the governors of each province and district, the mayor of every town, every provincial chief of police, one third of the entire Senate, and even every judge in Afghanistan. This centralized power has led to massive corruption, disenfranchisement of a large segment of the Afghan people, obstacles to economic development, massive abuses of power, increasing political instability, poor governance, and a vast undermining of law and order.

Similar to the US system, the Afghan Constitution assigns little official role for the vice presidents beyond assuming the presidency in the absence of the incumbent. In his first term, Karzai restricted the vice presidents' ability to act as president when he was out of the country, in large part due to an intense political rivalry between Karzai and First VP Ahmed Zia Massoud. Karzai had better relations with Second VP Karim Khalili, an important strategic liaison with Hazara communities and Iran. Karzai directed both vice presidents to oversee cross-cutting issues in the Cabinet (e.g. Massoud handling economics and Khalili refugee repatriation). Both complained that the lack of their own budget authority has minimized their influence.

The more practical role of the vice presidents was to attract ethnic votes for their running mate. Many credited Khalili for drawing enough Hazara votes to help Karzai clear the 50 percent barrier for a first-round victory in 2004, though most analysts doubt Massoud attracted Tajik votes that wouldn't have gone to Karzai otherwise.

Afghan Parliament

The Afghan Parliament was a bicameral body: the Wolesi Jirga (the Lower House with 249 directly elected members) and Meshrano Jirga (the Upper House with 102 Senators). The government can convene a Loya Jirga (Constituent Assembly) to decide urgent matters of independence, national sovereignty, and territorial integrity. Such an assembly, which can amend the constitution and bring charges against the president, must include members of the National Assembly and chairpersons of the provincial and district councils. A 1,650-member Loya Jirga chose the transitional government that took office in 2002, and a second such council formulated the 2004 constitution.

The Wolesi Jirga bears the main burden of the legislative process, much like the House of Commons in the United Kingdom. According to the Afghan Constitution, Parliament was elected to serve for five years. Out of 249 seats in the Wolesi Jirga, 10 seats are reserved for Kuchis and 68 seats are reserved for female representatives. In 2010 elections, female representation increased beyond constitutional quota to 69 seats. Laws are normally drafted by line ministries and other government agencies, and then sent to the Wolesi Jirga Committees for review. The relevant Committee will discuss and then circulate to any other relevant Committees for further discussion. Finally the draft law was presented to the general session of the Wolesi Jirga for approval. Additionally, Committees are able to summon government officials to Parliament to answer any questions the Committee may have. The Committee can also, in certain circumstances, request reports and written responses to MPs questions.

The Meshrano Jirga was the Upper House (or Senate) of the National Assembly of Afghanistan. The Meshrano Jirga has 102 members, three times the number of provinces. The Meshrano Jirga was composed of three different parts. One part was composed of a representative from each of the 34 Provincial Councils, indirectly elected for a period of four years. The second part was composed of a representative from each of the 34 District Councils, indirectly elected for a period of three years. However, District Council elections have yet to be held in Afghanistan. On 20 February 2011, a Presidential Decree set out an interim measure. According to this Decree, the Meshrano Jirga should include one extra representative from each Provincial Council. The extra 34 members from Provincial Councils will occupy the posts until District Council elections can be held. The third part was composed of 34 qualified candidates appointed by the President for a period of five years. Half of the appointed Senators should be women. Two members should be representatives for disabled people and two members should represent the Kuchis (nomads).

In Afghanistan, legislation can originate in the Executive Branch (when Parliament was in recess, the President can issue a Presidential Decree), or in the Legislative Branch (bills may be introduced in either the Upper or Lower House, or Meshrano Jerga and Wolesi Jerga, respectively). In the former instance, after the President issues a Presidential decree, the law was subject to Parliamentary review. Bills introduced by either the Upper or Lower House follow the familiar path of passing from one House to the other upon receiving a majority vote by MPs. Once the bill passes both Houses, it goes to the President, who has 15 days to approve or veto the bill. If the President approves the bill, it was submitted to the Ministry of Justice and becomes an enforceable law after being published in the Gazette. If the President vetoes the bill, the draft legislation returns to the House originating the bill for further deliberation. If the bill was subsequently modified, it re-enters the cycle. The Lower House also has the ability to override a Presidential veto by a 2/3 vote. Additionally, a bill was considered approved and enforceable if the President takes no action on the bill within 15 days of his receipt of the bill.

In 2009, Parliament passed 28 laws, of which nine were signed by Karzai, gazetted and passed into law. Two other laws were passed by both houses, were not acted on by Karzai, but were subsequently gazetted and passed into law. Yet another bill passed into law after the Lower House overrode a presidential veto. The fate of the remaining 16 laws was unclear. Some laws, after a period of months, appear in the Gazette; others do not and remain in a legislative "twilight zone" and are not considered "approved and enforceable".

Parliament was largely ignored by the Palace, rendered impotent by an inability to effect legislation, and fractured by ethnic, linguistic, and regional loyalties. Parliament was often its own worst enemy. Effective political parties (or, effective political leaders) would ideally drive legislative agendas in Parliament. The absence of either in either the Upper or Lower House makes marshaling support for any legislative agenda difficult. The tendency of MPs to vote along ethnic, linguistic, or geographic lines.

Although the Constitution creates a US-style three-branch government with various checks and balances, Karzai's interpretation favored executive interference in parliament's operations. Karzai believed the president should set the Lower House's agenda, determine which bills come up for votes, set the ground rules for testimony by Cabinet members, and approve the National Assembly's budget and foreign travel of its members, similar to a parliamentary democracy system of government with Karzai as both president and prime minister. Because the Constitution allows the president to issue decrees when Parliament was out of session, Karzai often waits out parliament and issues decrees to jump start his legislative priorities.

Provincial and Local Administration

The major subnational administrative division was the province (wilayat), numbering 34 in 2008. The two newest provinces were added in 2004. Each province has between five and 15 districts. In 2006 some 361 districts were in existence, but the number changes frequently as districts split or combine. Each province has one designated provincial municipality; some but not all provinces also have a single rural municipality. The municipalities fall under the direct jurisdiction of the Ministry of Interior.

According to the constitution, provinces, districts, and villages are governed by directly elected councils. The first elections for those councils, which totaled 420 seats, were held concurrently with the national parliamentary elections of September 2005. The chief executive at the province level was the governor, who was appointed by the president. As was the case with the national cabinet, the president has distributed governorships among influential regional and military groups. Province and district administrations have the same basic structure as the national government. According to the constitution of 2004, the central government, which theoretically stands at the center of a highly centralized system, delegates authority to the subnational jurisdictions in (unspecified) matters where local or regional action was more efficient. In actuality, the structure and government of the provinces have varied greatly; in most cases, provincial governance was based on the financial and military strength of local leaders as well as personal and tribal loyalties. In some southern jurisdictions, the Taliban insurgency has been able to establish parallel governments, including administrators and judges.

Judicial Branch

The legal system of Afghanistan consists of Islamic, statutory, and customary (Shura) rules. The supreme law of the land was the Constitution. The judiciary system was composed of the Supreme Court, the Courts of Appeal, and the Primary Courts. There are trial and appellate courts that specialize on commercial disputes. Since 2002, NGOs have been working to strengthen the rule of law in Afghanistan by identifying peaceful means for dispute resolutions and developing partnerships between state and community actors in the hopes of improving access to justice.

Despite these efforts, many legal disputes are still resolved outside the formal justice system by community based tribal leaders. Contract law in Afghanistan was set out in the Afghanistan Commercial Code 1955 and the Afghanistan Civil Code 1977. Under these codes, parties are generally free to: a) enter into and perform a contract on any commercial subject matter provided that subject matter or performance was not contrary to law, public policy, or sharia; and b) agree to have the law of a foreign state govern their contract.

According to credible contacts, civil cases in the commercial court system can sometimes take more than 18 months for parties to obtain resolutions. Cases are frequently resolved more quickly through an informal system or, in some cases, pursuant to negotiations facilitated by formal justice system actors or private lawyers.

Afghanistan’s judicial branch deteriorated during the Soviet occupation, and justice was administered by strict Islamic law during the Taliban era (1996–2001). To replace the ad hoc system in place under the transitional government, the constitution of 2004 stipulated that the Supreme Court include nine justices appointed by the president, with approval of the Wolesa Jirga, for 10-year terms. Those justices have particular importance because they are responsible for managing the personnel, budgets, and policy decisions of the entire national, regional, and local court system. At the urging of his Western partners in the 2006 Afghanistan Compact, President Karzai replaced several Supreme Court justices in 2006. Also in 2006, the Wolesa Jirga refused the renomination of the ultraconservative Fazel Hadi Shinwari, a staunch advocate of Islamic law, as chief justice. However, his replacement, Abdul Salam Azimi, proved equally conservative in his first two years on the court. The Afghan Supreme Court was the highest court in the land, but rarely functions as a constitutional interpreter and in fact such a role was challenged by some experts. It mainly serves as an appellate court which exercises the fact-finding jurisdiction of a primary court.

At the level below the Supreme Court are high and appeals courts. A National Security Court handles cases of terrorism and other threats to national security. Although every province has a lower and a higher court, judicial procedures are influenced by local authorities and traditions. The supply of trained jurists was very limited. In 2002 the transitional government established an education program run by Italian judicial experts to prepare judges, prosecutors, and defense lawyers. Although some individuals received secular judicial training in the early 2000s, the majority of local court officials came from Muslim religious schools and lacked judicial skills.

The respective roles of Islamic and secular law in the new national judicial system have not been well established; a large portion of the current law code was based on laws passed under the last king, Mohammad Zahir Shah (ruled 1933–73). In rural areas, where local elders and tribal authorities resolve criminal cases, Taliban laws remained in effect. According to a 2006 estimate, in all provinces some 90 percent of local cases were based on Islamic and tribal law.

Because access to the formal legal system was limited in rural areas, local elders and shuras (consultative gatherings, usually of men selected by the community) are often the primary means of settling both criminal matters and civil disputes, and they are known to levy unsanctioned punishments. According to the 2018 Asia Foundation Survey of the Afghan People, shuras were used to resolve 45 percent of all disputes and represent the predominant form of dispute resolution employed by Afghans (up from 43 percent in 2017).

Arbitrary arrests occur in most provinces, and that authorities frequently detain citizens without respecting essential procedural protections. Local law enforcement officials reportedly detain persons illegally on charges not specified under local criminal law. While the law gives defendants the right to object to his or her pretrial detention and receive a court hearing on the matter, authorities generally do not observe this requirement.

Electoral System

In 2004 Karzai appointed an 11-member Joint Electoral Management Body to permanently oversee election registration and procedures. The first parliamentary and local elections were held in September 2005 after being postponed for nearly a year for security reasons. Although the election commission ostensibly disqualified individuals commanding armed groups from the parliamentary elections, several of the most powerful regional warlords gained seats. The complex voting system for those elections, in which about 50 percent of eligible voters participated, received substantial criticism.

President Karzai made a firm commitment at the January 2010 London Conference to put in place meaningful electoral reforms which reflect lessons learned from 2009 and to ensure measures are in place to tackle the electoral abuses witnessed last year. Strengthening the independence of the Independent Elections Commission (IEC) and the Electoral Complaints Commission (ECC) was vital to ensuring that these institutions are impartial and effective.

President Karzai signed a legislative decree on 17 February 2010 with sweeping amendments to the 2005 Electoral Law, using his authority under Article 79 of the Constitution to issue legislative decrees during Parliamentary recess "in case of an immediate need." While some of the decree language provides needed technical clarification in a range of areas, the matter of immediate concern was how the decree increases the President's legal power over the electoral process. For the first time, the President would appoint the Commissioners of the national level Electoral Complaints Commission (ECC) and the new Provincial ECCs. While preserving a nationwide minimum of 68 women in the Lower House of Parliament, women's reserved seats in all elected bodies can also now be given to men in the event that a woman was elected but cannot fill her seat for any reason. The process of vetting candidates for membership in illegally armed groups, previously done through a commission including Afghan security ministries, UNAMA, and ISAF, appears to no longer allow international participation. Independent observers are no longer allowed to observe in a number of key situations including the sealing of ballot boxes and the examination of quarantined boxes by the Independent Election Commission (IEC). The decree appeared aimed not only at "Afghanizing" the electoral process by diminishing what Karzai regards as unwelcome foreign interference, but also at strengthening the hand of the Presidency in the conduct of the elections at the risk of weakening the transparency and legitimacy of the process.

The number of signatures required to become a candidate for any elected office have been too low to prevent frivolous candidates from running. This was part of the problem which led to an unmanageable number of Presidential and Provincial Council candidates in 2009. A positive development in the decree was that people wanting to run for office now must provide a greater number of signatures of registered voters in order to qualify. However, candidates are also required to pay significantly increased amounts of money in order to register. Presidential candidates have to pay 50,000 USD to register as a candidate (up from 1,000 USD) and District Council candidates must pay 200 USD (up from 40 USD.)