16 January 2003, Volume 2, Number 3
AFGHANISTAN'S NEW CONSTITUTION: TOWARDS CONSOLIDATION OR FRAGMENTATION?By Amin Tarzi
Nematullah Shahrani, Afghan's vice president and chairman of the Constitutional Drafting Commission (CDC), announced on 11 January that the preliminary draft of the country's new constitution is expected to be ready by March. Shahrani added that the draft would then be open for debate by civil society forums and experts in all 32 Afghan provinces, after which the final draft will be presented for adoption by a Constitutional Loya Jirga (CLJ) in October. Lakhdar Brahimi, the UN secretary-general's special representative for Afghanistan, said the work of the CDC is "vital for the consolidation of peace in Afghanistan" and expressed hope that it makes its self-imposed October deadline. In fact, the October 2003 deadline is two months earlier than that which was proposed in the Bonn Agreement of 2001, which established the current transitional administration for Afghanistan. This development is both good and bad news for Afghanistan.
The fact that the Afghan Transitional Administration is moving forward in accordance with the Bonn Agreement and plans to present a draft constitution before the expected deadline is, in itself, a positive development. However, what is worrisome is the absence of public debate on the nature of the new Afghan Constitution and the apparent reluctance on the part of the Afghan Transitional Administration and the CDC to tackle some sensitive but fundamental questions regarding the new basic political blueprint for the re-emerging Afghan state.
At the inauguration ceremonies of the CDC, the former king of Afghanistan, Mohammad Zahir, expressed the hope that the commission would consider both democracy and Islamic traditions in preparing a document that would set the standard for bringing success and prosperity to Afghanistan. But, so far, it is not clear what balance between these two ideals is to be achieved with the proposed constitution.
Of the many open questions regarding the new constitution, including the role of women in society, the relationship between the executive, legislative, and judicial branches; the ethnic balance in the government, and official languages, are basic issues that, if not dealt with carefully and with due respect to Afghanistan's realities and past constitutional history, can lead to divisive arguments with dire consequences for the country.
The first question revolves around religion -- the extent of the role given to the shari'a (Islamic jurisprudence) in the formulation of laws and regulations of the state: whether Afghanistan will be an Islamic state, where the shari'a will be the source of all laws, or whether it will be a secular state. An alternative is what most Muslim countries have adopted, namely a combination of shari'a and secular law. This was also the balance formulated in the 1964 Afghan Constitution -- which is to form the basis of the new constitution. This question leads to another potentially discordant question -- one which has been recently raised by some Afghans -- which Islamic school of jurisprudence should be given prominence in the new constitution. The 1964 Afghan Constitution followed the Hanafi sunni school, leaving around 15 percent of Afghans who follow the shi'i schools of jurisprudence -- mainly the Ja'fari -- without proper recourse to laws they adhere to.
While the status of religion in the next constitution should be expected to attract the most heated and passionate discussions, as it has done in the only two relatively open constitutional debates in Afghan history, in 1924-25 and 1963-64, the issue which could bring about an existential threat to Afghanistan as a state is the administrative system which the new constitution will envisage for the country.
The 1964 constitution was based on monarchy and there are no indications that the new constitution will revive that system. Therefore, a new system, whether parliamentary or presidential, must be chosen for governing the country. Secondly, the relationship between the center and the periphery has to be defined.
On the first issue, there are rumors that a parliamentary system may be chosen for Afghanistan with a president and a prime minister, based somewhat on the French system. If so, then the drafters of the new constitution must take into account the problems associated with such a system in a country that has had only one flirtation with elections, after the promulgation of the 1964 constitution. Today, powerful and semiautonomous warlords and commanders control much of the country, rendering any reasonably fair elections covering all of Afghanistan close to impossible. Also, the relations between the president and the prime minister must be discussed and defined so as not to create a situation where two political or ethnic powers become consistently entangled in a struggle for more control.
As for the second point, there is much talk of the creation of a federal system for Afghanistan, especially among the commanders and warlords who control swaths of the country and are militarily more powerful than the transitional administration headed by Hamid Karzai. There is even talk of a canton-based government system, similar to Switzerland, to be emulated by Afghanistan. In fact, Karzai himself has approached the Swiss government for consultation. The initial Swiss reaction was that a federal system would not work for Afghanistan until the country establishes stability, whereby the center can give power to the periphery or a national dialogue is held between the center and the periphery on an agenda for a unified federal state. Under the current conditions, federalism is tantamount to partition of Afghanistan. Many of those who advocate federalism desire an unofficial partition of the country, but would not dare say it outright. Others favor federalism because they cannot even envision -- based on Afghanistan's historical reality -- a central government in Kabul dealing with their regions in a fair manner.
There are other important questions that require open and candid exchanges, such as human rights in general and women's rights in particular. One only needs to revisit the experience of King Amanullah's constitutional experiment in the early 1920s to understand the sensitivity of these issues. Only by giving the public a more prominent role can these questions be addressed and common and national solutions found.
The lack of an open debate and reluctance on the part of members of the CDC or their UN advisers to engage the public or even to implement systematic interaction between members of the CDC and their counterparts in the Judicial Reform Commission and the Afghan Independent Human Rights Commission may be related to political realities on the ground in Afghanistan. The inability of the Karzai administration to extend its rule over all of the country, combined with the legacy of ethno-sectarian conflict from which Afghanistan has suffered in the past 23 years, are also obstacles.
Perhaps -- and propitiously for Afghanistan -- the CDC will bring a rabbit out of its hat that will be accepted by the majority of Afghans. But if the rabbit that emerges is not favored by the majority of Afghans, who today are not being heard in some corners of the country, then a golden and perhaps final opportunity to shape their country into a forward looking and inclusive society with respect to their traditions and religious beliefs may be missed. If it is not possible under the current political climate to present the Afghan people with a constitution that will guarantee these things and safeguard the unity of the country, then rather than presenting a highly idealized but unworkable and potentially divisive draft constitution, the CDC and its supporters may wish to bring some changes to the timeline provided to them by the Bonn Agreement, and work transparently on a new and workable vision for Afghanistan.
AFGHAN PAPER EXPRESSES CONCERN OVER DEVELOPMENT OF NEW CONSTITUTION...In a commentary about the work of the Constitutional Drafting Commission in charge of drafting a new constitution for Afghanistan (see "RFE/RL Newsline," 5 November 2002), the Kabul newspaper "Fajr-e Omaid" wrote on 1 January that members of the commission have mentioned that the new constitution will take into account aspects of all four Sunni Islam schools of jurisprudence -- Hanafi, Shafe'i, Hanbali, and Maliki -- but have made no mention of the Shia school of jurisprudence. "Fajr-e Omaid" noted that not even 1 percent of Afghan Sunnis are followers of the Shafe'i, Hanbali, and Maliki schools combined, while 25 percent of Afghans adhere to the Shi'i Ja'fari school. The commentary questioned how the commission can draft a constitution that could be considered democratic if the views of one-quarter of the Afghan population are ignored. (Amin Tarzi)
...AS DRAFT CONSTITUTION TO SAID TO BE READY BY MARCH.The vice president and chairman of the Constitutional Drafting Commission, Nematullah Shahrani, announced on 11 January that the preliminary draft of the new Afghan Constitution is expected to be ready by March 2003, the UN Assistance Mission in Afghanistan (UNAMA) announced on 12 January. Shahrani added that the draft will then be published for debate by civil society and experts in all 32 Afghan provinces, following which the final draft will be presented for adoption by the Constitutional Loya Jirga in October, UNAMA reported. Lakhdar Brahimi, the UN secretary-general's special representative for Afghanistan, said the work of the Constitutional Drafting Commission is "vital for the consolidation of peace in Afghanistan" and expressed the hope that it will meet its self-imposed October deadline, UNAMA reported.
Shahrani also called on representatives of the international community for donor support, noting that the commission's budget of $2.8 million does not include the future Loya Jirga. He added that President Hamid Karzai is working on the establishment of the Constitutional Commission, which will absorb the Drafting Commission, UNAMA reported. Shahrani did not elaborate on the composition or the date of the formation of the new commission. Shahrani added that the future constitution would be based on Islamic principles, Afghan legal traditions, as well as international norms and standards. "Hopefully," he said, "the new constitution will move the country away from isolation and show the world that Afghanistan wants to be integrated into the international community."
The Constitutional Drafting Commission consists of the following nine personalities and legal scholars: Chairman Nematullah Shahrani, Abdul Salam Azimi, Qasim Fazeli, Rahim Sherzoy, Muharama Musa Asheri, Musa Marufi, Asifa Kakar, and Sarwar Danish. Two of them are women. (Amin Tarzi)
HERAT GOVERNOR BANS WOMEN FROM COED LANGUAGE COURSES...Ismail Khan has ordered women not to attend language courses with men, "Farda" reported on 12 January. Mohammad Fahim, an official from the Herat governor's office, added that "co-education is against Islamic law." However, he insisted that the governor has "never prevented women from learning and teaching" as long as they are segregated from men, "Farda" added. Human Rights Watch on 17 December (see "RFE/RL Newsline," 18 December 2002) released a report titled "'We Want to Live as Humans': Repression of Women and Girls in Western Afghanistan" (http://www.hrw.org/reports/2002/afghnwmn1202), which focuses on the conditions for women in Herat under Ismail Khan's administration. (Amin Tarzi)
...AND IS CRITICIZED BY HUMAN RIGHTS WATCH.Human Rights Watch (HRW) stated on 16 January that "because of a shortage of female teachers, [restrictions on females in Herat Province] will result in a severe limitation on the ability of women and girls to receive proper education." Zama Coursen-Neff, an adviser to HRW's children's rights division, said that "Girls and women are trying to make up for years of school lost under the Taliban. These new restrictions may make it impossible for many to achieve that." Noting that Ismail Khan has specifically denied past allegations by HRW about the human rights situation in Herat, Coursen-Neff added that the "Taliban are gone, but government officials and soldiers are still sidelining, abusing, and harassing women and girls in Herat." (Amin Tarzi)
FORMATION PROCESS OF AFGHAN NATIONAL LOYA JIRGA DELAYED...The 19-member commission tasked with forming the Afghan Loya Jirga (national assembly) chose on 9 January as members of the future Afghan parliament 93 members from the emergency Loya Jirga that convened last June, Radio Free Afghanistan reported on 10 January. The commission, which began its work on 25 December, initially stated that it would complete its task in two weeks. However, some members of the body have raised concerns over the influence of political factions on their work and indicated that they would not meet the deadline, Radio Free Afghanistan reported. According to the report, the commission is currently working on a final document that will outline the roles and responsibilities of the body. The national Loya Jirga will comprise more than 100 members, but the mechanism of their selection has yet to be outlined, the radio added. (Amin Tarzi)
...AS CANADA PREPARES TO PROVIDE SUPPORT FOR AFGHAN ELECTIONS.Canada's chief electoral officer, Jean-Pierre Kingsley, announced on 13 January that Elections Canada (EC) will provide support and technical expertise to the UN Assistance Mission to Afghanistan (UNAMA). The aid is intended to help the Afghan Transitional Administration prepare for the general elections that are to be held in June 2004. Under the general leadership of UNAMA, Elections Canada will be providing strategic oversight for the Elections and Registration in Afghanistan Project in cooperation with the International Foundation for Election Systems. Elections Canada is a nonpartisan agency responsible for the conduct of federal elections and referendums in Canada. More information is at: http://www.elections.ca (Amin Tarzi)
UN OFFICIAL WANT A COMMISSION ON AFGHAN KILLINGS...Asma Jahangir, the UN special rapporteur on extrajudicial, summary, or arbitrary executions, said at a conference in Peshawar on 11 January that as a result of her visit to several Afghan cities she will recommend next week that the United Nations establish a commission to investigate human rights abuses that have taken place in Afghanistan over the past 23 years, the BBC reported. "If this issue can create a rumpus, why not now, instead of waiting five years when there will be no one to guarantee peace?" Jahangir said.
The issue of past human rights abuses in Afghanistan remains a very sensitive political issue, as some of those accused of being serious violators of human rights in the past are either part of the current Afghan Transitional Administration or control swaths of the country and have more military power than the central government in Kabul. (Amin Tarzi)
...AS KABUL ACCEDES TO ICC, WILL SUBMIT CRIMINALS FOR TRIAL...Sayyed Fazel Akbar, spokesman for President Hamid Karzai, announced on 13 January that Afghanistan has acceded to the International Criminal Court (ICC), a decision that would allow the extradition and trial of warlords, Reuters reported. Akbar said the Afghan cabinet approved the decision to join the ICC during its 13 January meeting, adding that Afghanistan will submit a list of criminals for trial "based on the evidence delivered [to it] and the principles of the ICC," Reuters reported.
The Karzai administration's move could allow it to indict and prosecute some of the more notorious warlords who have committed crimes against humanity in the past 23 years of civil war in Afghanistan, some of whom belong to the country's current power structure. (Amin Tarzi)
...AND U.S. OFFERS TO AID AFGHAN HUMAN RIGHTS COMMISSION...The United States will donate $1 million to the Afghan Human Rights Commission, Afghanistan state television reported from Kabul on 9 January. Visiting U.S. Undersecretary of State for Global Affairs Paula Dobriansky made the announcement during a meeting with Sima Samar, who heads the commission, the report added. Samar told Dobriansky that Afghans need to work continuously to reverse the pattern of human rights abuses that have plagued Afghanistan since 1978, the report added. The Afghan Human Rights Commission was set up under the 2001 Bonn Agreement and is to function independently from the government. (Amin Tarzi)
...WHILE KABUL WEEKLY REMAINS CONCERNED ABOUT SECURITY SITUATION.The security situation in Afghanistan, particularly in Kabul, is getting worse from day to day, the Kabul weekly "Panjara" wrote in a commentary on 11 January. It seems that criminal gangs are becoming increasingly organized and are more daringly testing the resolve of the security system, the paper added. Pointing to the fact that no arrests have been made following the assassination of "important government officials" and to the lack of information regarding the perpetrators of recent bombings in Kabul, "Panjara" said such lapses only encourage "terrorist gangs" to operate more freely. The commentary added that after the fall of the Taliban and the establishment of the Transitional Administration, the people of Afghanistan were looking forward to living a secure life. However, it added, recent security breaches and the inability of the government authorities to address them have "deeply disappointed and saddened" Afghans. (Amin Tarzi)
ATTEMPTED ATTACK ON DOSTUM FOILED.Bashir Baygzad, the security chief of the northern Afghan city of Sheberghan, told Radio Free Afghanistan on 15 January that the man who was arrested on 14 January as he was allegedly preparing to assassinate General Abdul Rashid Dostum (see "RFE/RL Newsline," 15 January 2003) was working for the Taliban and Al-Qaeda. Dostum is a powerful commander who serves as deputy defense minister and as the presidential representative in northern Afghanistan. Baygzad identified the alleged would-be assassin as a 27-year-old man from the Chahardarah district of Kunduz Province who recently moved to Kabul. Baygzad added that the arrested suspect said during his interrogation that 12 to 24 people have recently entered northern parts of Afghanistan to carry out terrorist activities. The report did not specify the identities of those people. Baygzad said the suspect was attempting to gain entrance to the palace where Dostum lives via a water channel, but was prevented from doing so by a fence and was caught. According to the report, the man intended to blow himself up close to Dostum. (Amin Tarzi)
UNKNOWN GROUP THREATENS FUEL SUPPLIERS TO THE U.S.An unknown group calling itself "Taliban and Sincere Mujahedin" has threatened to blow up fuel suppliers if they continue to provide fuel to U.S. forces in Afghanistan, the Afghan Islamic Press (AIP) reported on 14 January. A statement sent to AIP's offices in Peshawar said the "supply[ing] of fuel and food items to U.S. forces in Afghanistan is forbidden," and warned tanker owners of "death and execution" if they continue to deliver such supplies. (Amin Tarzi)
HIZB-E ISLAMI ISSUES A NEW COMMUNIQUE.Qutbuddin Hilal, a member of the radical Hizb-e Islami, speaking on behalf of the party's council, issued a communique in Peshawar on 9 January outlining the party's policies in six points, AIP reported. Hilal refuted recent reports of a rift within the party and denied any political or structural connections between Hizb-e Islami and the Taliban or Al-Qaeda, AIP reported. Hilal also condemned terrorism and said his side seeks understanding with President Karzai's administration and has initiated contacts with it, AIP reported Among the Hizb-e Islami's policies outlined by Hilal was a call for the "immediate formation of a national army in accordance with the wishes of the Afghans so there is no excuse for the presence of foreign troops in Afghanistan," AIP reported. Hilal's statement differed from the calls for a jihad against U.S. forces in Afghanistan by Hizb-e Islami leader Gulbuddin Hekmatyar, who recently called for a holy war against U.S. forces (see "RFE/RL Afghanistan Report," 2 January 2003).
Hilal has been trying to soften his approach toward Karzai's administration, but Hekmatyar has been doing the opposite. Some have suggested that a split has occurred within the ranks of Hizb-e Islami between hard-liners headed by Hekmatyar who advocate fighting the U.S. and its allies, and the more moderate elements who are trying to gain a foothold in the current Afghan power structure, this group being led by Hilal. (Amin Tarzi)
GERMAN HELICOPTER CRASH IN KABUL NOT CAUSED BY TERRORIST ACT.German Defense Minister Peter Stuck said on 15 January that the 21 December crash of a helicopter belonging to the German forces serving in the International Security Assistance Force (ISAF) in Kabul was due to technical defects caused by human error, ddp news agency reported (see "RFE/RL Newsline," 23 December 2002). Stuck said that "one or more screws in the gear" were not tightened after the CH-53 helicopter was reassembled in Kabul, and dismissed terrorism or pilot error as causes of the crash, ddp reported. All seven German soldiers aboard the helicopter died, the most casualties in a single incident during the ISAF's year-long operation in Kabul. (Amin Tarzi)
NEW BODY ESTABLISHED TO DEFEND PRESS FREEDOMS IN AFGHANISTAN...A new independent body to safeguard freedom of the press in Afghanistan was launched in Kabul on 7 January, Radio Afghanistan reported. The Free Press Defense Foundation was established by a number of Afghan journalists, headed by Abdul Qahar Sarwari, in order to safeguard the freedom of the press in Afghanistan and to increase the number of journalists there. Information and Culture Minister Sayyed Makhdum Rahin said at the inauguration of the new foundation that, although Afghanistan enjoys free media, the number of journalists in the country remains limited, the radio reported.
Whereas Kabul and some other parts of Afghanistan enjoy relatively free media, cities such as Herat and Mazar-e Sharif remain largely unaffected by the new openness. (Amin Tarzi)
...WHILE KABUL WEEKLY CRITICIZES PRESS RESTRICTIONS...In an interview broadcast on Afghanistan state television, Jawayd Farhad, the editor in chief of the Kabul weekly "Panjara," claimed that the media in Afghanistan are "by no means being run in a free or independent manner," the Kabul weekly "Farda" reported in 5 January. Farhad said Afghan media are "supported by some associations and international organizations, and this limits the freedom of the press," "Farda" reported. Farhad did not name these organizations or say how they restrict press freedoms. However, he did acknowledge that "steps are being taken toward freedom of the press." "Farda" criticized Farhad's comments as a "sort of sabotage" against free media in Afghanistan, and he questioned the origins and objectives of "Panjara." Furthermore, it suggested that Afghans should not view progress regarding press freedom in the country from Farhad's perspective. "Farda" did not indicate when the interview with Farhad aired. (Amin Tarzi)
...PROTEST BY AFGHAN JOURNALISTS IMMINENT...A number of unidentified journalists have hinted that they will stage a protest against Information and Culture Minister Sayyed Makhdum Rahin when the Afghan cabinet discusses laws and regulations on public demonstrations, the Kabul weekly "Farda" reported on 12 January. The report did not elaborate on the reasons for the journalists' planned protest nor has the date of the cabinet meeting been announced (see "RFE/RL Afghanistan Report," 9 January 2003, for more on issues regarding Afghan media freedom). (Amin Tarzi)
...AS KABUL PAPER CONDEMNS 'MEDIA WARS.'The Kabul daily "Anis" on 11 January commented on claims that new media laws in Afghanistan have ushered in a new era of freedom of the press in Afghanistan and the establishment of dozens of publications "parallel to the government press," saying most of "these publications are funded by political groups and individuals or foreign sources in Kabul." "Anis" claimed that these publications propagate their own ideologies and write whatever they want and have "restricted their freedom to criticize the government." The daily added that instead of concentrating on reconstruction of the country, most of the new publications are busy conspiring against one another, with "no consideration of journalistic values."
Freedom of the press is a new phenomenon in Afghanistan, a country that only enjoyed a relatively unrestricted media from 1964 to 1973 during what is known as the "Decade of Democracy" under former King Mohammad Zaher. (Amin Tarzi)
AZAL BECOMES THE FIRST COMMERCIAL AIRLINE TO KABUL.An Azerbaijan Airlines (AZAL) passenger plane flew from Baku to Kabul on 15 January, making it the first regularly scheduled foreign airline to travel to Kabul since the fall of the Taliban, Lider television reported from Baku. According to the report, AZAL plans three flights on the Kabul-Baku route per week. Until now only Afghanistan's Ariana Airlines offered international commercial flights to Kabul. (Amin Tarzi)
AFGHANISTAN'S SOCCER SQUAD GETS WORLD RANKING -- AT LAST.Afghanistan's national soccer team is ranked 204th in the January world rankings released on 15 January by soccer's international governing body (FIFA), Canadian Press reported. It marks the first time Afghanistan has been ranked since the country resumed international competition after the fall of the Taliban. Afghanistan did not participate in international soccer for two decades before resuming its soccer program in 2001. In the last five years of Taliban rule the main soccer stadium in Kabul was used for public executions. (Amin Tarzi)
THIS WEEK IN AFGHANISTAN'S HISTORY14 January 1929 -- Reformist Afghan King Amanullah Khan abdicates the throne after a rebellion that started against his rule ostensibly because of his modernization plans for the country, part of which were reflected in the 1923 constitution.
11 January 1993 -- In an attempt to gain legitimacy, Afghan President Burhanuddin Rabbani handpicks the Council of Resolution and Settlement (shura-ye ahl-e hall wa aqd), which in turn selects a new parliament in Kabul. Other parties in the civil war reject the move and fighting continues.
14 January 1994 -- Nabi Mohammad Mohammadi, the leader of Harakat-e Inqilab-e Islami-ye Afghanistan (a former mujahedin party), declares a jihad against the alliance of Abdul Rashid Dostum and Gulbuddin Hekmatyar.
Sources: "Historical Dictionary of Afghanistan" by Ludwig W. Adamec, (Lanham: The Scarecrow Press, Inc., 1997); "Sueddeutsche Zeitung"