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Afghanistan’s Failed Constitution

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Afghanistan’s Failed Constitution

The 2004 constitution is responsible for many of the problems facing Afghanistan today – including the retrenchment of the Taliban.

Afghanistan’s Failed Constitution
Credit: Freestock

Following the successful efforts in 2001 of a United States-led international coalition in alliance with local Afghan groups such as the Northern Alliance in overthrowing the Taliban, Afghanistan got a new constitution in 2004. This new constitution was supposed to usher in an era of modern governance by empowering the people of Afghanistan, supposedly for the first time in history, after being ruled by monarchs, Communists, and the Taliban. However, the elected, national government that subsequently came into existence never truly put down deep roots in the country; for many Afghans, it is a remote, corrupt regime that is not worth dying for.

The 2004 constitution itself is highly flawed and is responsible for many of the problems facing Afghanistan today – including the retrenchment of the Taliban – because of the structure of governance it created in the country. It was informed neither by history, nor the political and ethnic realities on the ground. These issues were not immediately evident, particularly because activists and scholars focused on civil and human rights issues guaranteed by the constitution instead of the less interesting but equally important questions of how to divide up power.

The single biggest flaw in the constitution of Afghanistan is that it created an over-centralized, unitary state in an ethnically diverse, mountainous country where local leaders, communities, and tribes often effectively rule themselves. Although historically, Pashtuns, who form the majority in the eastern and southern provinces, have been the country’s dominant group, no single ethnic group forms a majority in Afghanistan. A 2020 survey indicates that Pashtuns form 38.5 percent of the population; Hazaras, 24.5 percent; Tajiks, 21.3 percent; Uzbeks, 6 percent; and Aimaq, 3.2 percent, in addition to numerous other smaller groups. A state that should have been set up like Switzerland, with multiple, autonomous cantons, was instead centralized like ethnically homogenous Japan.

The 2004 constitution created a structure where provincial governors (of which there are 34), police officials, and “even schoolteachers” were appointed by the Kabul-based president. While the president of Afghanistan is elected by popular vote, the same cannot be said of local officials. What was the thinking behind this decision? The genesis of the 2004 constitution was a nine-person drafting commission appointed by the then-interim President Hamid Karzai in 2002. The draft was subsequently delivered to a larger 35-person Constitutional Commission in 2003, which delivered a final draft to Karzai. The president’s cabinet then strengthened the power of the executive.

Many Afghans at the time believed that a strong central government was necessary to prevent national disintegration, Iranian and Pakistani interference, and warlordism. Opposition to federalism and regional government was particularly strong among ethnic Pashtuns in the east and south whilst Tajiks, Hazaras, and Uzbeks were much more inclined toward local autonomy, while also cautioning against a federalism that could enable warlords. All groups, however, endorsed local control over local affairs at the level of villages and tribes, and did not want the government to interfere with traditional customs. Thus, Article 6 of the constitution was overly ambitious, by obligating the state to “create a prosperous and progressive society based on social justice, preservation of human dignity, protection of human rights…[and] realization of democracy.”

Throughout the drafting process, the draftees needed to take into account pressure coming from all sides, ranging from Islamic clerics to the United States, resulting in a constitution that at times contains contradictory elements such as enshrining both human rights and conservative elements of Islamic law. The constitution was ultimately enacted by a special Constitutional Loya Jirga (grand assembly) of 502 people in 2004.

The reality of Afghanistan, however, was that “warlords,” along with less-martial local actors, were necessary to run the country, which could not actually be administered in the centralized manner envisioned by the 2004 constitution. The fact that Afghans cannot elect their local governors led to situations where popular local governors – even if they were former militia commanders – were removed by Kabul, as in the dismissal in 2018 of the governor of Balkh, Atta Muhammad Noor, by President Ashraf Ghani. This has further undermined the legitimacy of the Kabul government. Because local arrangements were not mainstreamed by the constitution, the central government must either impose its control by force or fail to do so – thus leaving local actors and parallel institutions in place – both of which weaken the center in the eyes of Afghans.

The centralization mandated by the constitution not only extends to central-provincial relations, but to the nature of the central government itself, where there is an imbalance of power between the National Assembly (the parliament of Afghanistan) and the president. Afghanistan opted not to restore the old monarchy in the person of Mohammed Zahir Shah, a popular former king who was overthrown in 1973. Instead, the executive powers were vested in a powerful presidency. In a presidential system, the president is elected separately and independently of the legislature, often putting those two branches of government at odds with each other, as is the case in the United States. The president often has to rule by executive fiat because he or she is at odds with the legislature, yet also independent of it, and legitimized by an electoral victory in which he or she obtained a majority to become president.

On the other hand, in a parliamentary system – which many non-Pashtuns in Afghanistan favored – “the executive and legislative branches are interdependent. Only the legislative branch is directly elected by the people, and the legislature produces the executive branch.” Many political scientists argue that parliamentary systems are a better fit for divided societies like Afghanistan because they “provide a consensual framework in which different economic, ethnic, and religious groups can  find  representation and negotiate their differences,” and because it is possible to change governments between elections.

Initial drafts of the Afghan Constitution did include the office of a prime minister, selected by the Wolesi Jirga (House of the People, the lower house of the parliament), but ultimately the post was eliminated in the final draft. According to a government minister, he and many others thought that “a more decentralized parliamentary system would ultimately be better for a stable and inclusive Afghanistan, but that adopting such options in the short term would delay or even prevent the building of urgently needed institutions.”

Due to the winner-takes-all elements of a presidential system, it is impossible to form multiparty coalitions, even when it could have been useful to do so. For example, Ghani won the 2014 election by a narrow and disputed margin, and failed to win the popular vote throughout most of the northern provinces where non-Pashtuns are the majority. This produced a crisis of legitimacy that was only resolved by giving the runner-up, Abdullah Abdullah, an extra-constitutional post created especially for him, the chief executive officer, similar to the role of a prime minister in other countries. This was the only way to maintain the ambit of the Kabul-based central government over northern Afghanistan sans civil war.

The past two decades of Afghan history demonstrate the major flaws of the 2004 constitution, which ought to be replaced – if Afghanistan does not fall to the Taliban – or amended with a system that decentralizes power both at the provincial level and in Kabul between the executive and legislature. While the current Afghan constitution was designed to set up a centralized government because its draftees thought that such a system would strengthen the country, it may be the case now that the opposite could be true. The 2004 constitution of Afghanistan opted for excessive centralization at both the national and local levels to build national institutions. Paradoxically, this strategy backfired because this push alienated many Afghans, who in fact already had many local institutions at the village and tribal level. In addition to imposing a distant government’s will on localities, centralization in Afghanistan also created institutions that the government in Kabul simply could not run effectively, further undermining it in the eyes of its people.

The failures of the Afghan state along with the swelling of the area controlled by the Taliban demonstrate that the government has a major problem with legitimacy, particularly when its own well-armed and well-trained soldiers will not fight for it. On the other hand, warlords with local bases of operation have been historically more successful in fighting the Taliban. This is not an argument in favor of warlordism, but of the need for governments to connect with and derive legitimacy from local populations and institutions. The current political system of Afghanistan is ill-suited to that need because its geography, history, and heterogeneous population necessitate a less centralized system in which local people have more say in how they govern themselves. That is the only way they will have a stake in the future of their own government.