The New Constitution of Afghanistan
Said T. Jawad
Woodrow Wilson International Center for Scholars
06/01/2004
I would like to focus mainly on our new
constitution, but I will also share with you our achievements
and the challenges that we are facing in building state and
national institutions in Afghanistan, and the prospects of election
and democracy under our new constitution. In the past two years,
we have worked hard to implement the Bonn Agreement. We have
sustained the politics of consensus building, and continued
to craft inclusive political processes. On January 4, 2004,
President Karzai signed our new constitution into law, marking
another significant milestone, under the Bonn Agreement. Five
hundred and two men and women delegates adopted with near unanimous
acclamation the most progressive constitution in the region.
The draft was prepared by a 35-member team in consultation with
Afghans and experts from the United States, Europe and Africa.
At nationwide public meetings, half a million Afghans were asked
about their opinion for the new constitution. The new constitution
is a balanced national charter. It provides for equal rights
and full participation of women. It seeks and finds an equilibrium
between building a strong central executive branch (to further
strengthen national unity and rebuild the national institutions),
and respecting the rights and volition of the provinces to exercise
more authority in managing their local affairs. It institutionalizes
district and provincial level councils. Furthermore, it is a
careful combination of respect for the moderate and traditional
values of Afghan society and adherence to the international
norms of human rights and democracy. The new constitution further
reveals that our Islamic and traditional values are fully compatible
with and mutually reinforce an open democracy. The new constitution
provides for checks and balances between a strong presidency
and a two chamber national assembly with extensive powers of
inquiry. It establishes the president as the head of state.
He/She is elected by direct majority vote and he will serve
for a period of five years with two vice-presidents and is subject
to a two-term limit.
The president is the commander-in-chief of the armed forces
and appoints ministers and members of the Supreme Court, but
only with the approval of the parliament. The president cannot
dissolve the parliament. The constitution provides for a clear
impeachment process. The parliament or national assembly consists
of two chambers: the Wolesi Jirga (or the lower house) and Meshrano
Jirga (or the upper house or senate). To insure that 25 percent
of the members of the lower house are women, the constitution
requires that two female delegates be elected from each of the
34 provinces of the country. Such a high quota for women is
rare in most countries whether Muslim and non-Muslim. The president
appoints one-third of the senators of which 50 percent must
be women. The constitution creates an independent and able judicial
branch. The Supreme Court is comprised of nine members serving
for a period of ten years. The creation of the new Supreme Court
will be underway when the newly elected government is seated.
The new constitution institutionalizes the civil law
system in Afghanistan. The Hanafi jurisprudence of Islamic law
will only be applied if there is no existing law that deals
with the matter. The constitution protects the freedom of followers
of other religions. It prohibits formation of a political party
based on ethnicity, language and/or an Islamic school of thought.
The right to life and liberty, right to privacy, right to assembly,
and right of every person to a lawyer is guaranteed. The state
is obligated to appoint an attorney for the destitute. The constitution
obligates the state to abide by the UN charter and international
treaties and conventions. It also specifically protects the
rights of millions of disabled, handicapped and war victims.
The constitution, for the first time, gives Afghan citizens
unlimited rights to access information from the government.
The constitution obligates the state to prevent all types of
terrorist activities and the production and trafficking of narcotics
and intoxicants. It includes specific provisions requiring the
state to encourage and protect investments and private enterprises,
and intellectual property rights. The Independent Human Rights
Commission set forth by the Bonn Agreement is further empowered
and institutionalized by Article 58. The commission has the
right to refer cases of human rights and fundamental rights
violation to the judiciary and is empowered to defend the victims.
As evident by the new constitution, we have come a long way
in two short years. The fact that a few weeks ago the international
community in Berlin pledged US4.5 billion dollars for our next
fiscal year and US8.2 billion dollars for the next three years
indicates the confidence of the donor countries in our plans
and vision to build a democratic state in Afghanistan. Originally,
success in Afghanistan was set in the context of preventing
negative results from a failed state—such as spread of
terrorism, narcotics and violation of human and gender rights.
Today, Afghanistan is gradually emerging as a model of success,
creating positive and exemplary results for the region. Commerce
and trade through Afghanistan are increasing. This increase
is enhancing the movement of not only goods but also ideas,
such as free market economics and democracy, along the historic
Silk Road in Asia. We are hosting this week the first major
international business conference in Kabul. The two-day Economic
Co-operation Organization Conference brought ten countries together.
In the past two years, most Afghans have experienced a significant
improvement in their living conditions.
Last year, we reached an economic growth rate of 30 percent,
and are continuing at 20 percent this year, according to International
Monetary Fund reports. Our policy is to secure durable donor
commitment and to institutionalize the national budget as a
central tool of policy making. We are convinced that sustainability
can be achieved only by building the capacity of our government
to plan and monitor the reconstruction agenda. We are committed
to prudent fiscal and monetary policies and reject deficit financing.
Despite challenges, we are pursuing an aggressive strategy for
generating and collecting more domestic revenues. We have rebuilt
seven custom houses throughout the country.
Fiscal stability has been achieved in Afghanistan, after years
of political and economic mismanagement. We have successfully
launched a new currency and a very stable exchange rate has
been maintained. After years of three-digit inflation, businesses
in Afghanistan today are experiencing an almost inflation-free
environment. We have insured the autonomy of the banking sector,
and enacted a new banking law. Several international banks have
already opened offices in Kabul. We expect to see more to come,
as the market for loans, equity financing and insurance services
is not yet served. A new liberal investment law is enacted,
and a very open trade regime has been introduced.
Traders and investors are faced with limited tariffs. Border
formalities are being reduced to a minimum. We have set up,
with the assistance of the German government, a “one-stop-shop”
for investors, known as the Afghan Investment Support Agency.
To meet international standards, a National Bureau of Standards
is now being established. After licensing two private Afghan
and international mobile phone companies, telecommunication
and internet services are now available in Kabul and all major
cities. Two major international hotel chains have invested in
Afghanistan.
Building roads and infrastructure is our first priority. The
country is being reunited in terms of
roads. The main Kabul to Kandahar highway is completed with
the support of the United States and Japan. Securing funds for
the reconstruction of almost 5,000 kilometers of primary road
is now completed. We are building 1,000 kilometers of secondary
roads each year. Preliminary works on the Bamyan, Dushi, Jalalabad,
Spinboldak and Heart highways have taken place.New laws on political
parties, civic organizations, freedom of expression and the
press have been enacted. Fourteen independent and privately
owned radio stations are operating in different parts of the
country, including radio stations operated by women and for
women in provinces such as Kandahar and Kunduz. Two hundred
and seventy newspapers and periodicals, the largest number ever,
are published. Women are beginning to participate in social
and political life. On poverty reduction, we are implementing
the National Solidarity Program. Through this program, over
3,000 villages, covering five million people, have elected through
secret ballot their village development councils. These councils
are planning, managing and implementing development projects,
using a US$20,000 dollar block grant provided to each village
by the government. Every month, five hundred villages receive
around US$10 million in grants. To insure the national ownership
of the reconstruction process, we have adopted a National Development
Framework and presented the donor community with a detailed
seven-year outlook during the Berlin conference. Despite security
challenges, we have started the reform of our national intelligence
service, which is a remnant of past oppressive regimes. The
newly formed Afghan National Army is about to reach 9,000 troops.
About 7,600 National Police Force members are trained. This
number will increase to 20,000 by the end of the year. They
are gradually assuming their roles in maintaining security.
They are deployed in Herat, Faryab, Kandahar, Paktia, Khost
and Uruzgan provinces. Nationwide, more than 6,000 heavy weapons
have been moved to cantonment sites. About 5.6 million children
are going to school. Thirty-five percent are girls. We have
published millions of textbooks. We have rebuilt 20 percent
of our schools but there is more to be done. Only 29 percent
of schools are in buildings and 70 percent are in need of major
repairs. We need 2,500 new schools. Japan has rebuilt 150 schools
and the United States is building 1,000 more schools throughout
the country. We need to invest much more in education. Teachers
are being trained via radio broadcasts throughout the country.
Now, about our challenges—about which we are realistic.
We face the general challenge of building a state and providing
for good governance after the complete destruction of all national
institutions and a severe shortage of resources and human capital.
We must improve local and district level governance, and reform,
strengthen and rebuild our government institutions to make them
accountable, capable and more representative. We must enhance
government capacity to deliver services to all corners of the
country, especially areas prone to terrorist infiltration. All
Afghans have not yet benefited from the peace dividends and
economic recovery. Some still lack personal and social security.
We must eliminate corruption, nepotism, rule of guns and abuse
of power that undermine our recovery process. We must confront
and end the legacy of Soviet-oriented rules, and the mindsets
of the hooligans of the past decades. We are also facing specific
challenges of preparing the logistical and legal grounds for
the election and building the institutions and the capacity
needed to prepare and enact the enabling laws required by the
new constitution. Our people have no electoral experience. Our
attorneys and judges are paid US$40 a month. We also continue
to confront security challenges posed by the terrorists and
warlords. To overcome security challenges, we must expedite
the process of building our national army and professional police
force, and further orchestrate external security support. To
insure a successful election, our international partners must
enhance security in provinces by expediting the deployment of
the International Security Assistance Force (ISAF) and/or Provincial
Reconstructing Teams (PRTs). We welcomed the NATO and United
Nations’ decision to expand the ISAF outside of Kabul
as well as increasing the number of PRTs from 12 to 16 before
the election.
We must accelerate the demobilization, disarmament and reintegration
of private militias and prevent extremists and opportunists
from highjacking democracy and the state building process for
personal gain or factional agenda. The clashes in Herat and
Faryab prove, once again, that we will not be able to build
a civil society in Afghanistan as long as warlords, guns and
private militias are around. The international community must
help us to disarm and demobilize the existing militias. President
Karzai recently announced a major program to reduce the number
of militia groups by 40 percent by the end of June, and another
20 percent reduction by the end of the year, and to completely
eliminate them by the end of June 2005. That means that by the
end of June 2004, 11 divisions, 13 brigades, 10 regiments and
two battalions will be completely demobilized. Narcotics pose
a serious challenge for all of us. Cultivation and trafficking
of narcotics go hand in hand with terrorism and warlordism.
It is in our best national interest to fight them all. President
Karzai is committed to mobilizing all our resources in the fight
against narcotics. We know Afghanistan’s heroin, which
sells on the retail market for one hundred times the farm gate
price, is one of the main sources of the illegal money that
funds international terrorism and crimes across the region.
It also finances the destabilizing activities of warlords and
criminals in Afghanistan.
The international community and our government cannot afford
to wait as these destructive trends further endanger national
and global security. Comprehensive and accelerated efforts are
needed to break this vicious cycle. The government of Afghanistan
has adopted a National Drug Strategy to reduce drastically poppy
cultivation, encourage alternative income streams, destroy poppy
fields, and train specialized national police units. To overcome
these challenges and to make the state building process in Afghanistan
irreversible, Afghans need and demand the accelerated support
and the sustained engagement by the international community.
In two short years, the people of Afghanistan, in partnership
with the United States, turned a neglected country over-run
by the Taliban and al Qaeda, into what President Hamid Karzai
called “a center for the cooperation of civilizations.”
The Afghan constitution is a significant achievement in our
common fight against terrorism. Our next milestone will be holding
the first national elections under the new constitution. The
presidential and parliamentary elections are scheduled for September
2004. We insist on holding the elections on time; but we will
not compromise the legitimacy, credibility and integrity of
the process. We ask our international partners to help the United
Nations speed up the voters’ registration process. It
is crucial
that the process gives all adult Afghans the opportunity to
exercise their constitutional rights to vote in the first national
elections. To date, 1.8 million out of 10.5 million eligible
voters are registered. We are working with the UN to drastically
increase the number of registration posts from eight to 4,200
throughout the country. By helping Afghanistan sustain this
important milestone, the United States and other nations are
helping provide the future blueprint for democracy in similar
societies, the very best antidote to extremism and terrorism.
Led by the vision of President Karzai, Afghanistan has emerged
as a model. Afghanistan's successful advance on the path to
democracy and state building will impact the expectations and
the aspirations of the people in other arenas of the global
war against terror and tyranny. Our people genuinely believe
in engagement with the international community, and have put
their trust on the benefits of international partnership. The
world has found a genuine strategic partner in our president.
Together we must demonstrate that this trust is not misplaced.
