Afghanistan's Constitution
United States Institute of Peace
06/01/2004
Without greater Western investment in Afghanistan's
infrastructure and judicial system, the new constitution may
offer little more than hollow promises.
Afghanistan's Loya Jirga passed the most liberal
constitution in the region stretching from Syria to Pakistan
late last year. In addition to guaranteeing freedom of speech,
faith, movement, and a host of other civil rights, the constitution
also provides for the equality of the sexes and requires that
25 percent of the seats in the legislative branch be set aside
for women.
Yet the Constitution's protections may prove illusory—unless
quick action is taken to restore Afghanistan's infrastructure
and judicial system. So concluded a panel of experts convened
by the Institute for a briefing held on Capitol Hill in late
January.
The panelists were Said Tayeb Jawad, Afghanistan's
ambassador to the United States; Barnett Rubin, director of
studies at the Center for International Cooperation at New York
University; Laurel Miller, a program officer in the Institute's
Rule of Law Program; and Robert Perito, a special adviser to
the Rule of Law Program.
Of the panelists, the ambassador was perhaps the
most sanguine, lauding the outcome of the constitutional process
and expressing hope that the remaining challenges could be met.
He identified three of these challenges as particularly important:
first, that Afghanistan's state develop the capacity to provide
local and regional services; second, that the state properly
prepare for national and regional elections currently scheduled
for mid-year; and third, that the state expand its jurisdiction
and administrative control over the full extent of its territory.
These are daunting challenges, he said, but he was optimistic
they could be met.
The remaining panelists also viewed the constitutional
Loya Jirga as a milestone in rebuilding Afghanistan. But they
were less hopeful about the national reconstruction project.
Rubin noted that early disbursements of aid went mostly to emergency
humanitarian needs rather than to reconstruction, and argued
forcefully that much more aid—on the order of $15-20
billion—was needed to build an Afghanistan that contributes
to rather than threatens global security.
Laurel Miller and Robert Perito provided a generally
pessimistic overview of current security conditions in Afghanistan
and the absence of an even nominally adequate judicial system.
"The rule of law was never strong in Afghanistan,"
Miller said, "but after 23 years of warfare it has been
displaced almost completely by the 'rule of the gun.'"
In most of the country outside of Kabul, regional power-holders—or,
less politely, warlords—exercise political, police, and
judicial authority. Indeed, the most powerful warlords continue
to exercise influence over key ministries and institutions,
including the Supreme Court. Meanwhile, the opium trade is flourishing,
earning an amount equal to half the nation's legitimate gross
national product and nearly five times the government's budget.
It will take years—and an enormous investment—before
the Afghan government can put in place a counter-narcotics capacity
robust enough to make a dent in the drug trade.
Despite the growing danger, said Miller and Perito,
little is being done by Western nations to address these problems,
aside from some work in police training. No strategy has been
developed for reforming and rebuilding the justice sector; few
legal training programs are underway; virtually nothing has
been done to update the court system or repair the courts' physical
infrastructure. The vast needs of the corrections systems have
been almost entirely ignored.
The slow pace of reform stems from a number
of factors, Miller and Perito said, including the inherent difficulties
of conducting post-conflict reconstruction in a country that
has suffered two decades of warfare. But they also criticized
the United States and the United Nations for abdicating their
responsibilities and placing an unrealistic burden on Afghans
to provide for their own security and reconstruction—jobs,
they said, that Afghans have little capacity to execute.
