An Analysis of the State Building Process in Afghanistan
Remarks by Ambassador Said T. Jawad
American Bar Association
04/15/2005
Ladies and Gentlemen:
I want to thank the American Bar Association,
particularly Katlyn Thomas and Christopher Johnson for providing
me with this opportunity to talk about the potential of democracy
in Afghanistan.
I will briefly speak about the objective of the
state-building process in Afghanistan, and then discuss our
achievements and challenges for institutionalizing democracy,
with special focus on our new constitution, the presidential
and parliamentary elections, the state structure, our judiciary
system, warlords, the role of women, and the problem of narcotics.
Afghanistan has historically been a strong nation,
but the state institutions are systematically destroyed in the
past 30 years by invasion, war, terror and violence. Three years
ago, we inherited a country largely destroyed with a large and
dysfunctional bureaucracy.
With the partnership of the international community,
we embark upon the difficult task of building an efficient government
with small scope of activity. Our objective has been to build
a state that is effective, representative and capable of implementing
policies and enforcing laws. We want to reduce the size of the
state apparatus; and to increase its enforcement capability.
Our new constitution and our recent national elections
are the cornerstones of our efforts to rebuild a democratic
state with effective national institutions. On January 4, 2004,
President Karzai signed our new Constitution into law. The new
Constitution is a balanced charter that guarantees equal rights
and full participation of women in all spheres of life.
The new Constitution is the most liberal in the
region, and provides for a presidential system with a powerful
parliament. The constitution prohibits the amendment of the
fundamental rights of the people, unless done to make such rights
more effective. The right of every person to an attorney is
guaranteed. The constitution obligates the state to abide by
the United Nations charter and international treaties and conventions.
The success of the Afghan presidential elections
proved that the excuses are unjustified and the fears are misplaced.
Elections strengthen stability. Our election was free of violence.
The threat of a large scale terrorist attack and the fear of
intimidation by warlords never materialized. In fact, the success
of the election enhanced the partnership of the Afghans with
the United States and over 45 countries that contributed troops,
funds and resources to help stabilize and rebuild our country.
We are grateful to each and every one of them. Together we have
taken Afghanistan a long way forward in three short years
In December 2004, President Hamid Karzai announced
the new Cabinet. There are three women in the Cabinet. All Ministers
have a university degree, as required by the new Constitution,
and nine have doctorate degrees.
In September 2005, our people will elect their
representatives to the Parliament. To insure that over 25 percent
of the members are women, the Constitution requires that two
female delegates be elected from each of the 34 provinces of
the country. The President appoints one-third of the senators,
of which 50 percent must be women.
The new Constitution creates an independent and
able judicial branch and institutionalizes Afghanistan's civil
law system. The judicial branch consists of the Supreme Court
(Stera Mahkama) in Kabul, Appeal Courts in each province, and
Primary Courts in most Districts. There is no constitutional
court in Afghanistan. The Supreme Court is in charge of the
interpretation and oversight of compliance of laws with the
Constitution. The Attorney General is an independent body and
is part of the executive branch.
The new Supreme Court is comprised of nine members,
who are appointed by the President, for a period of 9 years.
Members of the Supreme Court can be tried in a special court
for crimes committed during the performance of their duties.
Although Afghanistan has an official Gazette to
publish laws, judicial opinions have not been published due
to lack of resources. The Official Gazette has recently resumed
its publication.
We have a civil law system. The first Commercial
Code was adopted in 1955, followed by the Civil Code in 1976
and the Penal Code in 1977. All codes are being revised.
In remote areas, the population generally relies
on informal and traditional systems of dispute resolution, such
as arbitration or mediation by jirgas (councils) and tribal
elders. The system is mainly based on local customs, which sometimes
contradict sharia law.
The challenge in Afghanistan is not the absence
of good laws; it is the lack of knowledge by legal professionals
about the laws, and more importantly, the government’s
limited capacity to enforce laws. During the 1990’s, many
mullahs or clergies were appointed as judges and thus, now take
part in the formal judicial system without proper training or
knowledge of codes and procedures. Implementing the qualifications
set by the Constitution is a major challenge due to lack of
human capital and trained legal professionals. It takes many
years to train a good judge. We can not import a good prosecutor.
Efforts to reform and improve the legal system
have started by the Afghan Judicial Reform Commission, set forth
by the Bonn Agreement. Reform has been slow. We have learned
that creating new bodies and commissions to carry out the judicial
reform was not the right solution. The government and the international
community should have focused more on capacity building efforts
in the Ministry of Justice and permanent justice institutions.
Italy is the lead country to assist us with the
reform of the judicial system. Additionally, the American Bar
Association’s Asia Law Initiative, the Center for International
Management Education, and the United Nations Development Programme
and US law firms are providing support for the reform process.
Italy is providing funding to the International Development
Law Organization (“IDLO”), which has compiled and
republished many of the country’s existing laws. Some
of the texts had to be located in foreign libraries. IDLO has
organized a program to train judges, and has repaired courthouses.
Afghanistan was one of the first countries in
the late 1950s to ratify the Convention on the Political Participation
of Women. In the 1960’s women were ministers and members
of our parliament and the first women judges were appointed
in 1969. Taliban and their terrorist mentors banned women from
public life.
Today, women legal professionals have created
organizations such as the Afghan Women’s Judges Association,
and the Afghan Women’s Lawyers Association. There are
thirty-two women judges and approximately 400 women lawyers
just in Kabul. There are also women judges, prosecutors and
lawyers working in other major cities.
Today, more than 35,000 women are working in various
public institutions. Afghan women are very active in the private
sector; some even have established construction companies. Massuda
Jalal was the first Afghan woman to run for President in our
November elections.
While the legal framework for gender equality
is established, true enhancement of women’s rights depends
on the degree of investment made by the international community
for education and economic empowerment of women in Afghanistan.
Of 5.4 million children that are going back to school in Afghanistan,
38% are girls; but only 29 percent of classrooms in Afghanistan
have roofs on them.
Afghanistan is a unitary state with most political
authority vested in the government in Kabul. The Afghanistan
public sector consists of the national government, 34 provinces,
dozens of municipalities and over 300 districts.
More than two decades of conflict has destroyed
Afghanistan’s traditional leadership which has been based
on respect, patronage and reciprocity. The rule of gun and factionalism
replaced the country’s traditional local power structure.
While the new constitution allows a measure of decentralization,
the people generally demand a strong central government, because
they have been victimized for two and half decades by their
local warlords and are worried about the fragmentation of the
country.
The power of warlords is diminishing in Afghanistan.
They are no longer a security threat to the government, but
continue to pose a threat to civilians. While many local strong
men are incorporated into the new political structure of the
country, the demobilization, disarmament and reorganization
(DDR) of former combatants continue. Thirty-six thousand combatants
and 4,000 child soldiers have been demobilized under the UN-backed
DDR program. We have gathered and moved to cantonment sites
more than 7,850 tanks and artillery pieces. The heavy weapon
cantonment is 95 percent complete. Over 63,000 names of militias
(mostly ghost soldiers) have been removed from the payroll of
the Government.
Plans to build the new national army are progressing on schedule.
The target to have a 70,000-strong army will be achieved by
December 2006. Twenty-five thousand have already been recruited
and trained. Thirty-two thousand police officers are trained
as part of rebuilding the Afghan National Police force.
Afghans have put their trust in the benefits of democracy and
partnership with the United States and the international community.
They are grateful to United States for all the assistance provided
to them and thank all US soldiers, who are fighting alongside
Afghans, to make Afghanistan and the world a safer place.
Thank you.
