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Articles & Op-eds

The New Constitution of Afghanistan
Said T. Jawad
Woodrow Wilson International Center for Scholars

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.

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