Afghanistan’s Constitution at Ten

On January 26, Afghanistan’s Constitution turned 10. While simply making it to a tenth birthday is an achievement of sorts, as many national constitutions today do not survive that long, the impending withdrawal of international troops and a pivotal presidential election on the horizon provide an opportunity to reflect on the U.S-backed effort at constitution-making.

The Constitution was mandated by the Bonn Agreement of 2001, in which the international community vowed to support Afghanistan’s transition from Taliban rule.  After a false start, an expert Constitutional Commission was formed in April 2003, and by September was able to send a draft to the President’s office.  The Commission’s version tilted heavily toward parliamentary power, but President Hamid Karzai and his staff modified the draft to amplify presidential powers and to eliminate provisions for a constitutional court. The draft then went to a Constitutional Loya Jirga in December. This diverse assembly, comprising 502 delegates from around the country, included regional warlords, women, representatives of refugee communities, and a set of President Karzai’s appointees. After three weeks of intense deliberation, the Loya Jirga approved the Constitution in early 2004, without changes. All in all, public input into the document was minimal, with the exception of the final stage.

Successful constitutions in post-conflict settings need to multitask. First and foremost, they must channel political conflict from the streets into parliaments and courts. As the Taliban collapsed in 2001, Afghanistan see-sawed on the brink of disintegration, with dozens of warlords from the 1990s civil wars seeking a piece of the action. The constitutional scheme gave the president a good deal of power to make appointments, and, in filling offices created by the new Constitution, President Hamid Karzai drew in many former warlords to the national government. Though some, like Guldbuddin Hekmatyar, remain active outside the tent of government, many others, including Abdul Dostum, Abdul Rasul Sayyaf, Ismail Khan, and Mohamed Fahim, have been folded into the regime. All of these men had played roles in Afghanistan’s bloody civil war of the 1990s. Paradoxically, peace was bought by tainting the very government that it enabled, as warlords decided they could make more money in the system than outside it.

Unfortunately, this strategy of cooptation has had serious negative consequences for corruption and human rights, two other dimensions relevant to measuring constitutional success. Human rights abuses by the Afghan government and third parties remain grave. Constitutional guarantees of equality for women remain woefully unfulfilled, despite genuinely impressive strides in education.  Many of the continuing problems have been exposed by the constitutionally guaranteed Independent Human Rights Commission, which is functioning well in an extremely challenging environment.  

As for corruption, it is hard to overstate the depth of the problem.  Transparency International ranked Afghanistan 175^th out of 177 nations last year. Both of us were working in Kabul during the constitution-making process in early 2003, and many of the potholed streets we navigated then remain unpaved today. Government responses to corruption have been anemic, with Karzai intervening repeatedly to stop prosecutions in cases involving close associates.

A constitution’s success is judged not only by the quality of governance it produces, but also on its legitimacy among the people. The Asia Foundation’s annual survey of the Afghan people shows a population that believes the country is generally moving in the right direction. Strikingly, more Afghans (57%) believed their country was headed in the right direction than did Americans in 2013 (32%), according to a Bloomberg poll in September. The data also suggest that the Afghan people understand the myriad challenges their government faces, and appreciate the current political stability in the teeth of insecurity and corruption.

Another important task of constitutions is to catalyze institutional development. Here, there are some hopeful signs.  Parliament has emerged as a formidable counterweight to President Karzai, creating several investigative commissions and exercising impeachment powers over cabinet ministers.  The Attorney General’s office has shown admirable independence at times. The judiciary, however, remains in poor shape: some 65% of survey respondents claimed to have paid a bribe to the judiciary last year.

Institutional conflicts have been exacerbated because of some shoddy constitutional drafting. Karzai and parliamentarians have fought over national elections and who gets to interpret the Constitution. At one point, the parliament even set up an alternative institution, the Constitutional Implementation Commission, to interpret the document, snatching the job away from Afghanistan’s Supreme Court. The result was a debilitating impasse.

Even more worrying is the fact that many Afghans believe the Independent Electoral Commission remains beholden to Karzai after his fraud-tainted re-election in 2009. Shoring up the commission’s integrity is crucial to the April presidential election — and is surely one of the biggest challenges facing the Constitution. Still, the very fact that the election looks set to go forward is a sign of constitutional success.  Many a constitution has died because a head of state finds the office too comfortable to leave. It seems increasingly clear that, one way or the other, there will be a new president in Afghanistan in 2014.

We hope Afghanistan’s worst days are behind it. The Constitution has played a role in helping to navigate the last decade, even if it has thrown up some impediments of its own. If the transition in 2014 goes well, the Constitution might just make it another decade or more.

The authors are professors at the University of Chicago Law School. Both were present in Afghanistan in 2003 during the constitutional drafting process. Ginsburg was consulting with the Judicial Commission of Afghanistan while Huq worked for the International Crisis Group.