The South Asia Channel
In his recent address inaugurating the 16th session of Afghanistan’s National Assembly, President Hamid Karzai rejected claims from some in the international community that constitutional change is necessary in Afghanistan and accused foreigners of treating Afghanistan like a "political lab." "Let me expressly and resolutely stress that we will never allow the perilous dream of ...
In his recent address inaugurating the 16th session of Afghanistan’s National Assembly, President Hamid Karzai rejected claims from some in the international community that constitutional change is necessary in Afghanistan and accused foreigners of treating Afghanistan like a "political lab." "Let me expressly and resolutely stress that we will never allow the perilous dream of trying another political experiment to turn into reality," asserted President Karzai. Mr. Karzai’s position is unsurprising, considering the astonishing amount of authority the current constitution bestows on him. Paradoxically, this authority was originally granted to him partially with the support of the international community. Unless concerted steps are taken to raise awareness of the need for reform, Afghanistan’s democratic development will continue to be stymied by the constitutionally-condoned actions of its modern-day monarch.
Not only does the constitution grant President Karzai extensive power, but he’s consistently shown that he’s not afraid to use it when things don’t go his way. His recent decision to dismiss commissioners of Afghanistan’s Independent Human Rights Commission (AIHRC) for considering publishing a report critical of its own government represents exhibit A. Among the dismissed were Nader Nadery, a now former commissioner and chairperson of the Free and Fair Election Foundation of Afghanistan, and Fahim Hakim, the former deputy chair of the commission and a former electoral complaints commissioner. Both are rare individuals in that they are respected civil society leaders with the trust of both the international community and their colleagues within Afghan civil society. Their dismissal was regrettable and the country is worse off as a result.
President Karzai’s willingness to dismiss human rights whistle blowers is troubling in itself, but what’s more problematic is the power granted to him to do so by the legal framework that was supposedly designed to support and protect Afghanistan’s democracy. The framework that should provide the roots for Afghanistan’s democracy to grow is instead fraught with so many deficiencies that it more frequently fails to protect citizen’s democratic freedoms and human rights. The startling authority the laws grant President Karzai to unilaterally appoint the country’s leadership prevents any meaningful check on executive authority from emerging and is perhaps the greatest challenge to Afghan democracy.
An examination of just some of these laws elucidates the situation. Article 7 of the Law on the Structure, Duties and Mandates of the Afghanistan Independent Human Rights Commission grants the president the right to appoint the commission’s leadership independently, without the requirement for consultation with other Afghan officials or confirmation from other institutions. The leadership of the country’s Independent Election Commission (IEC) is determined by virtually the same mechanism: the president decides who he wants responsible for the administration of the country’s electoral processes and appoints those individuals, unilaterally. What makes the process for IEC appointments even more inconsistent with democratic principles is the fact that the law granting the president this authority was not passed through a legislative process, but rather through his own presidential decree (Presidential Decree No. 23). In addition, the Electoral Law grants the president sole authority to appoint all five commissioners of the Electoral Complaints Commission. Unsurprisingly, Afghanistan’s current Electoral Law was passed by presidential decree.
The president’s authority over appointments extends beyond these supposedly independent agencies, even to the country’s other branches of government. Article 84 of the constitution grants the president authority to appoint one third of the upper house of the National Assembly, while the Provincial and District Councils are also each responsible for appointing one third of the body’s members. But as District Councils have yet to be elected, the president has graciously assumed the responsibility to name its portion of representatives to the upper house. Thus, the president currently appoints two thirds of the upper house of parliament, the Meshrano Jirga (the house of the elders).
His authority over appointments is not restrained to the central government in Kabul. He is also responsible for the appointment of all provincial and district governors, an authority he claims through Article 64(13) of the constitution, which states that he is responsible for appointing "high ranking officials." He exercises this appointment authority through, you guessed it, presidential decree. Even Afghanistan’s judiciary, which is surely meant to be independent, is subject to President Karzai’s unilateral appointments, as the same constitutional provision (Article 64 (13)) grants him authority to appoint and dismiss all judges.
Just as problematic as the extensive authority the president wields to appoint the country’s leadership is his willingness to legislate so frequently by presidential decree, an authority vested to him by Article 76 of the constitution. Rarely does he consult the National Assembly prior to issuing decrees and even more rarely does he submit his proposals to the scrutiny of the actual legislative process.
This is just a small snapshot of how flawed the democratic legal framework of Afghanistan is. Unfortunately, most in the international community have provided only token resistance to the president’s abuse of executive authority and have too infrequently spoken out against the systematic flaws in Afghanistan’s democracy. We should not expect a leader granted so much power under law not to use it. What we should expect, however, is a more genuine desire and serious effort to address the flaws in the legal framework of Afghanistan’s democracy.
The process that led to the adoption of the current constitution reveals how so much power became vested in the executive. Initially, the draft constitution was to be prepared by a constitutional commission informed by a public consultation process. The commission prepared a draft that sought to ensure a system of checks and balances including the creation of a prime minister, who would share authority with the president, and an autonomous constitutional court. Prior to a December, 2003 constitutional Loya Jirga, the commission presented its draft to President Karzai whose team made several changes to the document to concentrate additional power in the executive branch. These changes included eliminating the post of prime minister and the constitutional court, and expanding the president’s appointment and decree powers. The result was a constitution that ensured vast executive authority and failed to provide a framework for representative democratic governance and the protection of human rights. At the time, it was speculated that international actors supported President Karzai’s amendments in hopes that a strong executive could prevent any potential short-term instability.
Despite President Karzai’s stated reluctance, reform is the only way to strengthen Afghanistan’s democracy and provide for the defense of the human rights Afghans desire. Unfortunately, the issue of democratic reform is too often used as a bargaining chip for those issues the international community perceives as more critical to an expeditious transition to Afghan ownership over Afghan affairs. This flawed approach has resulted in a calamity of errors that Afghans will continue to pay for long after our departure from Afghanistan. The examples are abundant: the selection of the Single Non-transferable Voting system that ensures inadequate representation and stifles the development of political parties; the passing through presidential decree in 2010 of the country’s current electoral law; and the apathy of the international community to Karzai’s special electoral court during the most recent and controversial post-election process.
In its current form, Afghanistan’s democracy is not sufficient to sustain peace. To prevent Afghanistan from collapsing upon such a weak foundation, concern for democratic strengthening must stand on equal footing with Taliban reconciliation and the development of capable and sustainable Afghan security forces. While the latter two issues are critically important for Afghans to reasonably assume more authority over their own affairs, the deficiencies in the legal foundations that determine the strength of the country’s democracy and the nature of its system of governance can no longer be ignored. In order for reform to be possible, awareness must be raised among Afghanistan’s citizens of the need for a more balanced political system. As one would expect, the issue resonates amongst current parliamentarians, many of whom were targeted by President Karzai and his special electoral court just months ago. With support from their constituents and genuine diplomatic interest, democratic reform is possible.
Democracy cannot succeed in any country where so much power rests in the hands of one individual. For democracy to succeed in Afghanistan, the legal framework must be reformed so that it no longer serves as a hindrance to the strengthening and protection of democratic institutions, but actually promotes democratic consolidation. If we in the international community are serious about a truly sustainable Afghan democracy, democratic reform must be elevated as a top diplomatic priority in both Kabul and Washington. It’s time we acknowledge that Hamid Karzai is not Afghanistan’s George Washington. If Afghans are to realize their dream of a truly democratic Afghanistan, it will not be with the good graces of their modern day monarch, but despite him.
Jed Ober is Director of Programs at Democracy International. The views expressed here are his own.