The law and politics behind Afghanistan’s “traditional” Loya Jirga

On Wednesday, more than 2000 Afghan representatives will meet in Kabul for a "Traditional Loya Jirga" at the request of President Hamid Karzai. The ostensible purpose of the meeting is to gain popular consensus on a Strategic Partnership Agreement with the United States on security cooperation and to reconfirm a commitment by the Afghan people to a peace process with the Taliban.

Both subjects need national support to succeed. But many in Afghanistan are questioning whether a Jirga is a legal means for approving agreements rather than the government or elected representatives. And even if it is legal, is it still wise?

The first question is easier to answer. There is nothing illegal per se for the Afghan President, or others, to convene a "Traditional Loya Jirga" when they want, just as someone may convene a ‘Million Man March’ on a given issue in Washington. Jirgas, or councils, have been a common mechanism for community decision making in Afghanistan for centuries. National Loya Jirgas, or grand councils, have been used selectively to decide important matters of state.

Since 2004, however, a Loya Jirga has no binding legal authority unless it complies with formalities of the Constitution — and the upcoming "traditional Loya Jirga" does not. Article 110 of the Constitution defines a Loya Jirga in very specific terms, stating that its voting members comprise "1. Members of the National Assembly; [and]  2. Presidents of the provincial as well as district assemblies." Most notably, no district council elections have been held, and therefore a proper Constitutional Loya Jirga is currently impossible.  Beyond that, many of the delegates that were invited, such as tribal leaders, businessmen, or civil society representatives, do not hold positions authorized by the Constitution to attend an official Loya Jirga — making quorum rules and voting rights entirely unclear.

A consultative Jirga, on the other hand, can make political statements or send signals to those in Parliament or the country’s government about what is acceptable to the people. In 2010 President Karzai convened a "Consultative Peace Jirga" to initiate a peace process with the Taliban, and it endorsed the creation of the High Peace Council that was headed by former Afghan President Burhanuddin Rabbani until he was assassinated in September. Yet the High Peace Council was ultimately formed by President Karzai under his executive powers. As such, it serves as an advisory body and does not set a precedent for consultative Jirgas to pass legislation or otherwise take official state actions.

Those who criticize the legality of the upcoming Loya Jirga have two primary concerns.  One is that President Karzai will seek to amend Article 62 of the Constitution, to allow him to run for a third presidential term. This seems unlikely, given the clear legal deficiencies the upcoming Jirga has compared to the Constitutional requirements stated in Article 110. Moreover, any attempt at amending the Constitution would surely encounter strong opposition from democratic opposition leaders and the international community, some of whom have already made their voices heard against Wednesday’s Jirga. 

The more difficult question is whether the Loya Jirga will be asked to approve a strategic partnership agreement with the United States as a binding agreement in lieu of Parliamentary ratification. Article 90 of the Constitution gives the National Assembly (comprised of both the upper House of Elders and lower House of the People) the duty of "Ratification of international treaties and agreements, or abrogation of membership of Afghanistan in them." The strategic partnership agreement probably would not qualify as a treaty because, among other things, the United States has so far not proposed to present it for Senate ratification under its own Constitution. Whether or not it meets the Constitutional definition of an "international agreement" hinges on its specific terms and definitions under Afghan law that likely have no precedent under the current Constitution.

That legal thicket should be left for another day, however, because the real concerns about Wednesday’s Loya Jirga have more to do with political legitimacy than legal fine print. Implicit in the questions from Parliamentarians about the Traditional Loya Jirga’s legality or the Taliban’s threat to kill Jirga attendees is a fear that the "Traditional Loya Jirga" has more public credibility than they do, and will undermine their authority. Indeed, while the membership of other Loya Jirgas has been criticized as politically manipulated and unrepresentative, the Parliament is seen as little better after the fraud-filled 2010 election. The Taliban’s credibility is, by some measures, at even lower ebb.

Ultimately, the merits of the Traditional Loya Jirga rest on whether one sees it as fundamentally democratic or a tool of an exclusive political elite.  This, in turn, depends on the Jirga’s membership and mandate. In an ideal form, national Jirgas could be seen as a rough equivalent of a referendum as compared to parliamentary legislation. While elected representatives handle everyday matters of law, a referendum’s more direct democracy presents an opportunity for ‘the people’ to surpass the legislature on matters of particular importance when conducted in accordance with the Constitution. 

National jirgas have not been so pure in practice, however. Since the Constitution was ratified in 2004, national jirga representatives have tended to be selected on an ad-hoc basis, largely by the office of the President, without transparency and with clear deficiencies in representation of women, civil society, and other important constituencies.

Given that the "Traditional Loya Jirga" lacks formal requirements to assume constitutional powers, its main authority is political. Therefore, its success will depend on whether President Karzai has chosen members that truly represent diverse constituencies and limit themselves to political outcomes. If instead the delegates are seen as exclusive of key interest groups and attempt to make legally binding decisions that could not be approved otherwise, this Loya Jirga will represent a significant setback for Afghan democracy and could foment greater conflict, rather than pushing forward the priority of peace.

Scott Worden is a Senior Rule of Law Advisor at the U.S. Institute of Peace. He served as a Commissioner on the 2009 Afghanistan Electoral Complaints Commission and was an observer of the 2010 Parliamentary Elections.