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Afghanistan: Loya Jirga Approves Constitution, But Hard Part May Have Only Just Begun

  • Golnaz Esfandiari

UN Secretary-General Kofi Annan has praised Afghanistan's new constitution as a historic achievement. U.S. President George W. Bush says the document lays the foundation for democratic institutions and elections before the end of the year. But observers question whether a country emerging from more than two decades of fighting can be so quickly transformed. They say the ethnic divisions that still exist in the country will make implementation extremely difficult.

Prague, 5 January 2004 (RFE/RL) -- After three weeks of often contentious debate, Afghanistan's new constitution -- the country's sixth written constitution -- was approved by consensus rather than through a vote.

Yesterday, a majority of the 502 delegates signaled their endorsement of the constitution by silently standing in a huge tent on the outskirts of Kabul. The agreement was a relief for the Afghan government and its allies. Acrimonious debate, ethnic divisions, and, particularly, the boycott of the voting process on 1 January by more than 40 percent of the delegates had sparked fears that agreement would not be reached.

On 3 January, the UN's special envoy to Afghanistan, Lakhdar Brahimi, and the U.S. ambassador to Afghanistan, Zalmay Khalilzad, held closed-door negotiations with rival delegates in order to get the assembly back on track. A compromise agreement was reached, and the constitution was approved.

Dadfar Sepanta is a professor of political science at Achen University in Germany and an expert on Afghanistan. He considers the Constitutional Loya Jirga, or grand assembly, a success for the people of Afghanistan because it makes the government accountable and guarantees their rights.

"The ratification of the constitution is a huge success for the Afghan people for several reasons," he said. "First of all, the structure of the Afghan government, the governmental institutions, also the performance of the government and the rights of the Afghan citizens will have a legal framework."

After more than two decades of war, Sepanta says the fact that delegates representing different ethnic groups and minorities in Afghanistan were able to sit and discuss the constitution should also be considered a victory.

"Despite all the difficulties of the past 24 years, where Afghans solved their problems with force and guns, this time -- with the help of the international community -- they could, during 22 days, in a peaceful manner have a dialogue with each other, talk and discuss," he said.

Afghan Transitional Authority Chairman Hamid Karzai has said the new constitution reflects the views of all Afghans. He also told the assembly: "There is no winner or loser. Everybody has won."

Analysts, however, say Karzai has emerged as the main winner, since the strong presidential system he advocated was finally approved. After much debate, little was changed from the original draft. Rivals of Karzai, led by former mujahedin commanders who wanted to curb the president's powers, did manage to strengthen parliament with amendments granting veto power over key presidential appointments and policies. The president will also have two vice presidents.

Vikram Parekh, a senior analyst with the International Crisis Group in Kabul, raises doubts over whether the new constitution ultimately will be supported by different factions within Afghanistan. "It was a success for...Karzai, and it's also a success for the United States, which was backing him wholeheartedly in this particular respect," he said. "But in terms of whether it will be a document that will be inclusive and gain the support of the different sections of the population, that I'm much more doubtful of."

The main split at the assembly was between two groups -- the Pashtun supporters of Karzai's government and the Tajiks, Uzbeks, and other smaller ethnic groups led by former President Burhanuddin Rabbani, Uzbek commander Abdul Rashid Dostum, and Islamic conservative Abdul Sayyaf. The status of languages was one of the main issues that delayed the agreement. Dari and Pashtu will be the two official languages, but northern minority languages have been granted official status in their strongholds.

Sepanta says the ethnic divides that emerged at the Loya Jirga could bode ill for the future. "The problem is that politics in Afghanistan -- particularly in the last 24 years and specifically in the last week [during the Loya Jirga] -- had a strong ethnic and tribal color," he said. "It means that those ethnic issues that exist in Afghanistan's structure became a political and ideological tool."

Sepanta added: "If these [ethnic issues] are not overcome democratically, then my concern is that the warlords and politicians will take advantage of the ethnic differences, and this is unfortunately the only way you can mobilize people. It's not possible anymore to mobilize people in the name of Islam, communism, or similar ideologies. The only negative and destructive tool that exists in Afghanistan are ethnic issues."

Analyst Parekh says the process of adopting the constitution has sharpened existing ethnic divisions in the country. "My concern really has been that the process of creating the constitution, and most particularly the Constitutional Loya Jirga, has been one that instead of bridging divisions between people -- especially the ethnic divisions, which have been the most polarizing in Afghanistan -- in some ways, it has actually exacerbated these divisions by throwing the major debates on the constitution, by casting these almost entirely on ethnic lines," he said. "That process of adopting the constitution, I think, may have in some ways made the process of implementing it considerably harder."

He continues, saying, "I think Karzai's standing as somebody who represents all of the different sections of Afghanistan -- all of the different ethnic [groups] and communities and the Sunnis and the Shias -- this has probably been damaged to a certain degree by the real divide between Pashtuns and non-Pashtuns that emerged during this Constitutional Loya Jirga."

The ratification of Afghanistan's new constitution is a key step in the UN-backed Bonn process and paves the way for the country's first democratic elections, tentatively scheduled for June. Analysts say the actual implementation of the constitution, however, will depend on the security situation in the country.

Dadfar Sepanta says, "The acceptance and implementation of the constitution depends to a big extent on whether disarmament [of warlords] will be implemented in Afghanistan, whether there will be an end to the rule of different regional commanders, and whether the authority of the central government will be strengthened."

Some analysts say several articles of the constitution are not clearly defined and that others are open to interpretation. Article 3, for example, says that "no law can be contrary to the belief and provisions of the sacred religion of Islam." Some believe this may open the door to a strict implementation of Islamic law. Parekh says clearing up these ambiguities will be very important.

"The main challenges, I think, that lie ahead when it comes down to implementing the constitution -- one will be just simply clearing up a lot of the ambiguities in the constitution," he said. "I mean, the draft -- there is a last-minute compromise in it that had a sort of commission for the implementation of the constitution, but it doesn't clarify at all what the powers of that commission are going to be. Conflicts between secular sources of law, like international human rights law and Islamic law, also need to be clarified, as well."

Today, a spokesman for Karzai admitted that putting the constitution into practice in a country that has experienced more than 20 years of war will be a major challenge. "Now that Afghanistan is entering a new era, adoption of a new constitution is vital," spokesman Jawed Luddin said. "But more important now is the implementation of this constitution all over the country."
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    Golnaz Esfandiari

    Golnaz Esfandiari is a senior correspondent with Radio Free Europe/Radio Liberty. She can be reached at