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Analysis: Difficult Choices, Constitutional Dilemmas Confront Afghan President

Karzai has led the Interim, and subsequently Transitional, administrations for nearly three years (file photo) On 7 December, Hamid Karzai was sworn as the first popularly elected president in Afghanistan's history in the presence of an unprecedented number of foreign dignitaries.

Such a demonstration of support for Karzai by his foreign allies might well be the last grand act of the nearly three-year honeymoon that the Afghan leader has enjoyed with his international backers. That is likely to be the case if Karzai is unable to deliver on his election promises -- which include effecting an end to "warlordism," serious counternarcotics efforts, enacting accountability in government, fighting poverty, and more.

Since the inception of the current transitional administrative system that was established for Afghanistan in December 2001, Karzai has rightfully argued that his hands have been tied by a set of arrangements in which he was not even a participant. (Karzai was leading an effort against Afghanistan's hard-line Taliban regime in southern Afghanistan when the deal on a new regime was being worked out in Bonn, Germany).

In light of his recent landslide victory in the 9 October presidential election -- granting him an accompanying popular mandate -- and an Afghan Constitution that affords the president far-reaching powers, Karzai will have few credible alibis if the situation in his country does not improve. Worse still if conditions deteriorate further due to decisions taken by him. (For more on power of the president in the constitution, see "RFE/RL Afghanistan Report," 6 November 2003).
Without a doubt, Karzai's first test and the foundation upon which his five-year term as president of the Islamic Republic of Afghanistan will be built is his choice of cabinet ministers.

Without a doubt, Karzai's first test and the foundation upon which his five-year term as president of the Islamic Republic of Afghanistan will be built is his choice of cabinet ministers. In this task, Karzai faces a challenge and a constitutional dilemma -- with the latter giving him greater power but also placing greater responsibility squarely on his shoulders.

The New Afghan Cabinet

Throughout his presidential campaign, Karzai maintained that he would not form a coalition government if he were successful in the election. And his comfortable margin of victory -- 55 percent versus 16 percent for his nearest rival, former Education Minister Mohammad Yunos Qanuni -- suggests that he need not seek coalition partners.

While rejecting the idea of a coalition government, Karzai did leave the door open during the campaign for his opponents to join his cabinet -- with the understanding that they should share similar views as Karzai.

Speculation about the new composition of the Afghan cabinet has circulated for some time, with much of the focus on whether Karzai might include warlords or those who -- if a court existed in which crimes in Afghanistan against humanity might be tried -- might have been indicted as war criminals (see "RFE/RL Afghanistan Report," 8 November 2004).

Karzai's dilemma is that while his margin of victory was wide, the vote was split along ethnic lines. Moreover, some people with questionable pasts secured large numbers of votes from their respective co-ethnics. For Karzai to rule effectively, he must somehow deal with such these elements -- however unsavory that might seem. And in the absence of a strong military force that is loyal to the central authorities in Kabul and the Afghan Constitution, appeasement in the form of cabinet posts remains Karzai's only real choice at the moment.

Constitutional Ambiguity

Beyond the choice of a cabinet, which is expected to be announced soon, there remains a constitutional vagueness surrounding the new government.

Article 71 of Afghanistan's new constitution, adopted in January, stipulates that members of the cabinet "are appointed by the President and shall be introduced for approval to the National Assembly." An amended Article 160 states that "every effort shall be made to hold the first presidential election and the parliamentary election at the same time." However, since that situation did not occur -- as the drafters of the constitution must have speculated -- they wrote into the constitution that "until the establishment of the National Assembly, the powers of the National Assembly...shall be held by the Government."

This essentially means that Karzai and his two vice presidents, as the only members of the "government" for the time being, enjoy the power to appoint a cabinet -- and thus form a government -- without scrutiny by the National Assembly.

While this loophole in the constitution affords Karzai absolute authority to appoint the government of his choice, the absence of any National Assembly that might act as a check on that power places the burden of possible failure squarely on his shoulders.

Article 161 of the constitution seeks to afford the National Assembly its powers retroactively by stipulating that the legislative body "shall exercise its powers immediately after its establishment."

If Afghanistan is to have a reasonably representative National Assembly, some of the personnel choices made by Karzai might come under criticism and even face eventual dismissal. While a distant and remote possibility, the existence of such a clause in the constitution (if the document is respected to the letter) could lead to a cabinet that is analogous to the wishes of the Afghan people.

In some cases, the popular choice might well be a warlord or "regional leader" -- to use the more politically correct version of the term -- who has support among his people.

With the ethnic imbalance in the presidential vote and the possibility of similarly divided results in the parliamentary elections scheduled for April 2005, President Karzai has a golden opportunity of several months in which to select a cabinet that -- for reasons of political expediency might include a warlord or two. But on the whole, the makeup of the government should reflect and adhere to the president's vision for his country and possess the merits to carry out their respective tasks.

If that delicate balance is not achieved, Karzai might lose more than simply his domestic backing. He could alienate many of those who were on his guest list for the 7 December inauguration ceremony.

[For more on Afghanistan's historic elections, see RFE/RL and Radio Free Afghanistan's dedicated "Afghanistan Votes 2004-05" webpage.]