The Pulse | Politics | South Asia

The Inauguration of 2 Presidents: Afghanistan’s Constitutional Crisis

To solve the election stalemate and salvage peace talks with the Taliban, Afghanistan needs to rethink its all-powerful executive branch.

By Zalmai Nishat for
The Inauguration of 2 Presidents: Afghanistan’s Constitutional Crisis
Credit: Facebook/ Ashraf Ghani

Empirical literature almost unanimously agrees that it is extremely difficult to guarantee the functioning of “independent” institutions in post-2004 Afghanistan. This is due to the quasi-royal powers and privileges of the president, who is designated as the head of three branches of the state.

The post-Taliban Bonn Conference adopted the 1964 Constitution of Afghanistan by annulling the chapter on the monarchy. Under the 1964 constitution, the monarch, as head of the state, had extensive powers, but a prime minister led the executive branch of the state and ran the day-to-day business of government. The 2004 constitution, however, bestowed almost all privileges of both the head of state (the king) and the executive branch (prime minister) to the office of the president. This potentially leaves the way open for the arbitrary use of the vast power and authority invested to one office and one person, the president. For a highly diverse country, this exceedingly centralized system is a recipe for disaster.

The evidence also shows that checks and balances between Afghanistan’s executive, legislative, and judiciary branches are very difficult to maintain as the power of the president’s office overshadows the others. For this reason, it is hard to expect even “independent” institutions — such as the Independent Election Commission (IEC) and Independent Election Complaint Commission (IECC) — to function truly independently.

Another downside of such a highly centralized political system is the inability of local governance structures to engage meaningfully with the local population at the village, district, and province levels in policymaking, service delivery, and budget execution. Unavoidably, the local government receives all of its strategies, plans, and policies from the capital with little input from or interaction with the local population, thus losing the opportunity of building a real bridge between government and society.

As hinted above, the problems emanating from the post-2004 political system are not limited to the macro level in the capital, Kabul, but also extend to the local government level as well. Local authorities are not accountable to the local population and provincial councils have failed to play a meaningful role in checking the power of Kabul. In addition, there are no oversight mechanisms at the district level since district council elections have not materialized yet. Instead of being accountable to local population, local authorities entirely depend on Kabul for their mandate and authority. This hurts the legitimacy of state structures. Both provincial and district governors are appointed by the president and are accountable to him through the Independent Directorate of Local Governance, housed in the Presidential Palace. This creates a two-layered problem in the political system — both in Kabul and at the local level.

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Given the problem of checks and balances and the difficulty of ensuring the independence of institutions like the IEC, it is no surprise that Afghanistan’s  four presidential, three parliamentary, and various provincial council elections under the post-2004 constitutional order have proved so highly controversial. This is why Dr. Abdullah Abdullah, the former chief executive, has questioned the “independence” of the IEC and called the results of the 2019 election fraudulent. These systemic issues are the reason Afghanistan witnessed the inauguration of two presidents on Monday: Abdullah at Sapedar Palace and Dr. Ashraf Ghani, the IEC’s declared winner, at the Presidential Palace.

In Afghanistan, democracy has not failed but democratic tools have been mis-utilized.

It is impossible to expect the long-awaited intra-Afghan peace talks to start without resolving the current constitutional crisis that Afghanistan is facing. Based on the U.S.-Taliban accord signed on February 29, an inclusive delegation should have been appointed by the government of Afghanistan to start the intra-Afghan talks with the Taliban by March 10. This will not be possible until the election dispute is over.

Given the urgent need for peace, the international community does not have the appetite for a repeat ballot if the election results are annulled. Hence, there is no way to resolve this dispute – and start peace talks with the Taliban – unless a bargain is stuck between two front-runners, Abdullah and Ghani. The question is what this bargain could look like.

To blunt the vast powers of the president – which especially in time of peace would require consensus building among all of Afghanistan’s ethnic groups and political factions – it is important to split up the executive branch and ensure the formation of an inclusive government. The National Unity Government (NUG), brokered by then-U.S. Secretary of State John Kerry in the earlier disputed presidential election in 2014 could serve as a model, but an inclusive government must have important differences from the NUG.

Under the NUG, the executive branch was divided between the Presidential Palace and the newly created Office of the Chief Executive (OCE). The OCE, however, did not have the required authorities and functions to balance the outsized power of the president. This issue must be remedied this time. A dual executive can address some of the challenges mentioned above both at the national and local governance level and can also help ensure improved checks and balances between the three branches of the state. More importantly, it can help ensure more credible and inclusive strategies and policies, boosting the prospect for peace with the Taliban.

In a post-peace Afghanistan, a dual executive is also needed to contain the Taliban. Even in an ideal scenario where Taliban opt for an election, the possibility of an extremist centralized state is far beyond the risk of reforming the government structure.

In the short term, Afghanistan needs to establish a leadership council to oversee the formation of an inclusive delegation to kick-start intra-Afghan negotiations with the Taliban. The leadership council would supervise the peace process and negotiations.

Now that Afghanistan is entering a crucial phase of peace negotiations with the Taliban, all parties and ethnic groups of Afghanistan – as well as women – must feel represented in the peace process. This will only be possible with the formation a leadership council to oversee and monitor everything from the make-up of the delegation to values and rights – including the achievements of the past 19 years of democratic government in Afghanistan – during these talks.

The leadership council needs to be inclusive to facilitate the political consensus required for peace. The council should include leaders of all major political parties, national figures including women, and civil society figures.

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Zalmai Nishat is a researcher at the Afghanistan Institute of Strategic Studies (AISS) and Asia Centre at the University of Sussex. He has a BA in politics from SOAS, University of London, and an MA in political philosophy from the University of Sussex. His Twitter is @Zalmai_Nishat