Afghanistan’s Flawed Constitutional Process

EXECUTIVE SUMMARY AND RECOMMENDATIONS

Afghanistan is stumbling on its way to a new constitution. The document that must express the values and aspirations of a people may lack widespread legitimacy because it has been drafted in a secretive and unaccountable manner. International efforts to promote public education and consultation have been inadequate. The Transitional Administration (TA) and the UN are now heading down a well-trodden path in Afghan history whereby a constitution is proclaimed but no one, let alone those in control of state power, has any incentive to respect it.

The political process needs to be substantially rethought and recast. More time is required to fashion a truly democratic institution. The plan to convene an unrepresentative Constitutional Loya Jirga in October 2003 should be dropped. Instead, the national elections mandated for 2004 should be used to create a national assembly that can conclude work on and adopt the constitution.

This can and should be done within the spirit of the Bonn Agreement of 2001. That document provides few details for the democratic transition. Among these is a Constitutional Commission tasked with preparing for a Constitutional Loya Jirga that must be convened not later than January 2004. But the TA and the UN have created a process lacking in transparency that accommodates the factions now in power in Kabul. Both the Constitutional Drafting Commission and the Constitutional Commission, charged respectively with writing a preliminary text and then consulting publicly on it, were appointed without public process though the latter is responsible for building public confidence. Because the groups that dominate the TA, like the ethnic Panjshiri Tajik Shura-yi Nazar, heavily influenced the selections, few Afghans are likely to accept the Commissions as representative or neutral bodies.

Compounding the problem of factional domination of the process is the absence of real public education or consultation. The UN-drafted plan contains minimal public education and consultation elements to which scant funds are allocated.

Tentative plans for the Constitutional Loya Jirga involve selecting a group of delegates from the June 2002 Emergency Loya Jirga but as of June 2003 there was no mechanism to do this. There is considerable danger that a selection process that is not transparent and does not exclude the un-elected delegates allowed at the last moment to enter the Emergency Loya Jirga, will undermine any credibility the new Loya Jirga might have.

The UN has justified the absence of a fuller public process with three concerns – security for members of the Constitutional Commission and the public; the risk that the process might be hijacked by extremist groups, and the danger of public confusion. But none of these preclude a public process; all are amplified by the current process.

The U.S. and other NATO members have failed to address the real security deficit. Civil society across Afghanistan consistently identifies provincial governments as an important source of insecurity. Yet, the consultation process is organised mostly in provincial centres with the cooperation of those governments. Deployment of international military personnel, as occurred during the Emergency Loya Jirga process in a handful of places, and training of special Afghan police and army units have not been considered. Nor has a more decentralised process to reduce provincial administration control. More time is essential so real security measures can be taken.

Public debate could also negate some extremist groups’ arguments and build coalitions among more moderate factions. Indeed, this is a singular opportunity to strengthen new democratic groups struggling to find a toehold in the political scene. Some former mujahidin groups, especially Jamiat-i Islami-yi Afghanistan, and their allies also contain more progressive elements that could be nurtured during a full public debate on the constitution.

Finally, public confusion is the product of obfuscation by the TA and the UN. Most Afghans know what they want from government and from a constitution. Efforts by some in the UN in particular to paint them as an undifferentiated peasantry lacking meaningful opinions are demeaning.

To restore integrity to a process that has already been considerably compromised, the TA and the UN must first admit candidly to the Afghan people that preparations have been inadequate and more time is needed. The revised political timetable must be underwritten by a renewed international commitment to providing security, particularly outside Kabul. A fresh international conference, called perhaps by NATO, which takes over the international security mission (ISAF) in August 2003, and the UN, could serve as a venue. Having NATO as a co-host might mesh the security and political processes together to provide a coordination that has been lacking.

The Bonn Agreement contains a flexible timeframe that can be used to further its goals of democratisation and pluralism. Its only fixed points are the convening of a Constitutional Loya Jirga by January 2004 and the holding of elections, implicitly for a national assembly, also that year. The role of a Constitutional Loya Jirga should be taken on by that national assembly, much as the 1964 Constitution envisaged legislators acting as a loya jirga to amend that constitution. The initiation of a sequence of rolling elections, conducted province by province, would begin in early 2004. In effect, the Bonn Agreement’s requirements to convene a Constitutional Loya Jirga and to hold elections would be combined into a single, democratically legitimate process that could also more readily be synchronised with some security sector reforms.

After two decades of conflict, Afghanistan needs and deserves a richer and better planned and supported public process of constitution making. The Afghan government and the international community still have time to create one.

RECOMMENDATIONS

To the Afghan Transitional Administration (TA):

1. Explain the process that established the Constitutional Commission, with details of members’ political affiliations, and provide an opportunity for public comment on members, particularly in regard to allegations of involvement in criminal behaviour and human rights violations, with the possibility of removal of those with a tainted past.

2. Expand the timeframe for public debate on and adoption of the constitution by

1.     cancelling the October 2003 Constitutional Loya Jirga; and

2.     beginning a series of rolling elections in early 2004 for a national assembly that would act as the Constitutional Loya Jirga envisaged by the Bonn Agreement, discussing, initiating public debate on, and finally adopting a constitution.

3. Publish the draft constitution prepared by the Constitutional Drafting Commission.

4. Design and implement a process of public education and consultation, with particular attention to radio and television, and a decentralised consultation process that minimises security risks.

5. Replace provincial and district governors and military leaders implicated in political violence and intimidation both during the Emergency Loya Jirga and thereafter.

6. Enact a law regulating and authorising political parties that, unlike the present draft, satisfies Afghanistan’s international law obligations in regard to the freedoms of expression, assembly, and association.

To the International Community:

7. Support the Transitional Administration in the creation of a process appropriate to the security and political situation and responsive to the need for accelerated public education efforts, by sponsoring through NATO and the UN an international conference to address timeframe issues.

8. Support and underwrite financially the expansion of public debate about the constitution, for example by providing technical assistance related to radio and television publicity campaigns and community awareness programs at village and district levels.

9. Identify and encourage new democratic networks and the more professional and less extremist elements within mujahidin parties and their allies to play an active role in the constitutional process, thereby helping to consolidate a moderate base, particularly in the Loya Jirga, to counter extremist mobilisation.

10. Implement security measures around the consultation process and the Constitutional Loya Jirga, including:

1.     training of units of Afghan police to minimise security threats around public consultations; and

2.     deployment of small teams of Special Forces to protect consultations, and the partnering of these with Afghan police and army units.

11. Implement a program of international monitors for the consultation process and the Constitutional Loya Jirga, and identify publicly through radio and television those provincial leaders responsible for intimidation.

12. Promote disarmament, demobilisation, and reintegration, in tandem with sustainable employment creation schemes.

To the United Nations:

13. Strengthen the managerial and strategic capacities of the United Nations Assistance Mission in Afghanistan (UNAMA) Constitutional Commission Support Unit with the inclusion of staff experienced in logistics, public campaign planning, and political negotiations.

14. Facilitate both Afghan civil society efforts to promote popular understanding and mobilisation around the constitution and international efforts to provide direct technical support to the Constitutional Commission.

15. Implement a protection plan related to political intimidation and coercion, in partnership with international security forces, newly trained units of the Afghan National Army, and the Afghan Independent Human Rights Commission.