The release of Afghanistan's draft constitution is stirring debate both within and outside the country. As RFE/RL reports, some of the key issues include the stronger-than-expected presidential powers enshrined in the document and the lack of specific powers for an independent commission to deal with violations of human rights.
Prague, 5 November 2003 (RFE/RL) -- Thousands of copies of Afghanistan's draft constitution are being sent to remote parts of the country as authorities seek input from ordinary citizens ahead of a Constitutional Loya Jirga planned for next month.
The draft -- formally presented to Afghan Transitional Administration Chairman Hamid Karzai on 3 November -- is not necessarily the final version of the document that will be presented to the Loya Jirga.
Afghan Foreign Minister Abdullah Abdullah told RFE/RL yesterday that views expressed by Afghans during the next month could be incorporated into a final draft. "Lots of work has been done on Afghanistan's constitution and its different aspects. People's views have been largely reflected, and now people have the opportunity to study the text of the constitution," Abdullah said. "And, finally, the representatives of the people in the future [Constitutional] Loya Jirga, God willing, will express their final opinion about the different articles of Afghanistan's constitution."
In fact, the release of the draft surprised many of those who had seen an earlier working version of the text. That version had suggested a government in which power would be split between a president and a prime minister. "The New York Times" reported as recently as 19 October that such a system was still expected.
But the draft released this week does not provide for an Afghan prime minister. Instead, it appears to centralize authority under a stronger presidency with powers that span the executive, legislative, and judicial branches of government.
For example, the Afghan president would appoint cabinet ministers, a Central Bank chief and the nine Supreme Court judges, with the approval of parliament. The president also would appoint one-third of the deputies in the upper chamber of the bicameral parliament.
As the commander-in-chief of the Afghan armed forces, the president would be able to declare wars and cease-fires, again with the approval of the legislature.
Presidential authority also would include the power to appoint and dismiss lower-level judges, military and national-security officers, police and other officials -- without any vote in parliament.
Sidiqullah Patman, a member of the Afghan Constitutional Commission, defends the idea of such strong presidential powers. In an interview with RFE/RL, Patman said the draft constitution aims to avert the kind of internal fighting that destroyed much of Kabul during the early 1990s when one faction controlled a powerful prime minister's post and a rival faction controlled the presidency.
"This would benefit the people and Afghanistan's national interest. It is possible that at some later stage the people in Afghanistan may want a regime with a prime minister," Patman said. "This is conceivable if we have developed a mature democracy by that time. But at the present stage, a system with a prime minister would open the door to a series of small [political] factions that could cause some nuisances."
Ratification of a constitution is a key aspect of the internationally backed Bonn process on post-Taliban Afghan reforms. A new constitution is needed to create the legal infrastructure for presidential elections scheduled for June.
Amin Tarzi, a regional analyst for RFE/RL who specializes in the history of Afghan constitutional law, said he agrees that reforms in the country could benefit from such a strong presidency. But Tarzi warned that the proposal could backfire if Transitional Administration Chairman Hamid Karzai fails to win next year's elections.
"This constitution, under the circumstances right now, seems to be a Karzai-tailored constitution which will foresee Hamid Karzai as the next president of Afghanistan -- as a benevolent autocrat with some sort of checks and balances for the future," Tarzi said. "Therefore, if President Karzai is elected next June, this could be something good. However, if somebody else takes [office under] this constitution as it stands, [they] could become a virtual dictator."
Tarzi also notes numerous loopholes and omissions in the draft document that he says could lead to behind-the-scenes political wrangling at the Loya Jirga. "[The issue of having both a president and a prime minister] may be one of those things that could be debated. Maybe they will add one more vice president, because this was talked about [in the past]. They may change the vice president to a prime minister as a way to get this thing passed through the Loya Jirga. There may have been some voids [intentionally] created just to have a certain degree of bargaining power [during the Loya Jirga]," Tarzi said.
John Sifton, a researcher on Afghanistan for U.S.-based Human Rights Watch, told RFE/RL that the draft Afghan constitution appears to contain largely symbolic language on key issues -- including the protection of human rights. "The language is good on human rights, but language doesn't protect human rights. Institutions do. And what we don't have in this constitution is a strong indication that there will be institutions to guard human rights," Sifton said.
For example, he said, the Afghan Independent Human Rights Commission is not given the power to initiate legal proceedings against alleged war criminals, to subpoena witnesses or investigate alleged abuses in depth and seek remedies.
"The people who have the most to fear from these provisions are not stupid men. They know very well that they can be sidelined in the future because of their pasts. Some of these men were involved not just in small-scale atrocities but enormous atrocities which took place in the early 1990s -- the era when Kabul city itself was destroyed," Sifton said. "They know that if those crimes come to light, they will not only be politically damaged but they could be pushed out [of government]. That language [on a stronger Afghan Independent Human Rights Commission] did not make it into the draft. That's no accident. There were people who wanted that language gone -- and they won."
Sifton believes it is too early to raise concerns about the issue of power being centralized under the Afghan presidency, particularly, he says, considering the fractured political landscape that exists in the country after two decades of war.