Rewriting a new Afghan Constitution: A Briefing Paper

Syed Sharfuddin

The G7 countries met virtually on 24 August under the chairmanship of British Prime Minister Boris Johnson and demanded that Taliban must extend the deadline for foreign troops to leave Afghanistan beyond August to complete evacuation of all US and NATO troops, as well as stranded foreign nationals in Kabul and those Afghans who do not wish to live under a Taliban rule. The G7 statement also repeated the call of the UN Security Council (UNSC) made at its meeting on 16 August for Taliban to observe human rights and prevent terrorist acts against third countries. The only difference was that while the UNSC statement did not mention Taliban by name, the G7 did so as an indication that there is now an acknowledgement that the next government in Kabul will be formed by Taliban and they will be making the future decisions in Afghanistan. President Joe Biden, however, did not agree to the G7 demand. He insisted that the US was on course to complete the ongoing evacuation operation by 31 August. He also said that extending the deadline in the absence of an agreement with Taliban, which was not expected, will endanger the security of the US and other foreign troops remaining in Afghanistan after the August deadline.

Regrettably, the G7 call carries the potential of conveying a confusing message to the Afghans who are afraid of atrocities and human rights violations in a future Taliban government. After the airport is cleared and those Afghans whose papers are complete fly out of Kabul, thousands more will be getting ready to leave Afghanistan by air, land or long walk in the next few months to claim asylum in the countries which contributed troops to ISAF in the past. But their expectations would remain a pipe dream against the hard reality of international dynamics. The West had not foreseen such a large emigration of Afghans coming so soon, and neither is the public in the US, EU, UK, Australia and Canada ready to welcome new waves of refugees from Afghanistan. If this happens, thousands of Afghans will be disappointed and become marginalised in their own country because of the false hopes being built by civil society and media.

Ideally, the US and NATO should extract guarantees from the Taliban for giving the Afghan people full civil and political liberties and respecting their human rights in return for a Taliban government’s recognition by the UN and international institutions, including access to the much sought after trade and financial institutions such as the WTO, IMF and the World Bank. Afghanistan is a richly endowed but GDP wise a poor nation, but it is a member or partner of over fifty  intergovernmental, regional and international organisations. This may look like a huge burden for a small country to be representing itself in this high number of organisations, sometimes duplicating and at other times working at cross purposes, but it is also a huge reservoir for starting constructive engagement and promoting global good practice with the Taliban. It will be a waste not to use this great network of knowledge and resource for the rebuilding of a new, peaceful, just and rules-based Afghanistan owned and run by Afghans themselves. By not agreeing to the demand of his European allies in the G7 to extend the 31 August deadline, President Biden seems to be in favour of not pushing Taliban too much in a corner to force them to take unwanted extreme measures which would only add to the instability of Afghanistan in an already volatile strategic region which remains an active theatre of great power rivalry close to Iran, China and Russia.

On their part, the Taliban should not prevent any Afghan who has valid documents to travel to another country freely and without intimidation. The life and property of those Afghans who do not agree or welcome Taliban should be fully protected, and their rights should be recognised and granted by the new rulers. The Taliban have an opportunity to clear their image as barbarians and human rights violators. If any doors are to be knocked in Kabul by their fighters, they should be knocking these doors to offer scared people food and transport to the airport, should they have the right travel documents. As custodians of a new Islamic government in Afghanistan, the Taliban should follow the example of prophet Mohammad, peace be upon him, when he entered Makkah ten years after Hijrah. They should force no one to stay in Afghanistan against his/her will. This will be their first major test the world will be watching closely.  

What has happened in Afghanistan in August 2021 is not less than a revolution. Afghans have paid dearly until this moment whether they supported Taliban or fought against them. Their capture of Afghanistan was not a peaceful and constitutional transfer of power from one party to another. A Taliban-led government cannot automatically expect to be recognised by the UN and other countries. Taliban also cannot, as a matter of routine, lay claim to Afghan overseas assets and development funds committed to the former government of Afghanistan by international financial institutions. They will need to work their way to earn it back. They will need to show with their actions in the next few months and years that they are capable of running a responsible and law abiding government.

But the revolution also gives Taliban advantages. They are not obliged to follow the commitments the previous government made to its international partners, or continue with the projects the previous government signed with foreign investors and countries. They are free to renegotiate investment agreements with overseas private investors, institutions and governments. They can launch an inquiry into corruption and kickbacks on commercial deals made by the leaders of the previous government. They are also free to impose limits on the number of foreign diplomats a country can send to its embassy in Afghanistan or open consulates or trade offices in their country. They can sign new treaties of friendship and cooperation with their neighbouring countries or request technical assistance from third countries if faced by brain drain in the short term. They do not have to give a blanket approval for accepting the UN and international covenants without adding any reservations on clauses which contradict their Islamic ideology. They do not have to stop narcotics production or sell arms they have acquired in the war booty to third parties in order to pay their officials salaries. They do not have to give any guarantees that they will not use unconventional methods to defend Afghan territory if it is attacked from outside. All these instruments are now open to Taliban for fresh negotiations with international organisations and third countries. Everything is on the table for negotiation on both sides.

The Taliban have postponed the announcement of their government structure until after the withdrawal of the US and NATO troops from Afghanistan. This has more to do with their own internal issues than international troops withdrawal. It is hard for them to reach power sharing arrangements within their ranks on forming an inclusive government with Pashtun, Hazara, Tajik and Uzbek leaders, women and tribal elders. It will be even harder for them to make compromises on implementing their Islamic ideology and its acceptance by the people of Afghanistan. They will also need to make compromises when political expediency, pluralism and diversity require them to go slow, when they are writing the new laws and regulations.

The Taliban have indicated that they will keep the 2004 constitution of Afghanistan but change it to incorporate their vision of an Islamic Emirate. The 2004 Constitution is a document which was adopted without wider consultations among Afghans. It was drafted with the help of Afghanistan’s external partners. As a primary legal document of the country, it must be Afghan written and Afghan owned. The Taliban were not part of the of the constitution writing process. It was drafted in a hurry in December 2003 and approved and ratified within one month in January 2004.

Even from the perspective of a modern democratic constitution, the 2004 constitution lacks many important features. It provides for an independent election commission (article 86) but it is silent about the appointment, terms of reference and statutory funding of the chief election commission and other members of the commission. The 2004 constitution provides for the establishment of an independent human rights commission (article 58), a central bank (article 12) and an attorney general (article 64.11), but it does not provide for the establishment of an independent public services commission (article 50), an armed forces commission, a truth and reconciliation commission, an inter-provincial disputes resolution council, an auditor general and an independent police commission. Afghanistan needs these institutions backed by the constitution in order to overcome its special vulnerabilities through its internal political processes.

With regard to the Islamic character of the constitution, it is clear that an attempt was made by the framers of the constitution in 2003 to give it an Islamic baptism without much thought. For example, article 4 of the constitution states that “national sovereignty in Afghanistan shall belong to the nation, manifested directly and through its elected representatives.” In the Islamic system of governance, sovereignty belongs to Almighty Allah and is exercised by the people on earth as his representatives, who in turn mandate their leaders to govern them in their land according to the teachings of Quran and the sunnah of prophet Mohammad, peace be upon him. However, the people retain the power to change their leaders if they do not follow Allah’s commands in the function of governance, especially in administering justice, ensuring peace and providing livelihood and sustenance. This concept is missing in the constitution. In another example, article 64.11 mentions, among others, the appointment of the head of the Red Cross. It could be a typo but it reveals the written source. In Islamic countries, including Afghanistan it is known as Red Crescent.

In the Afghan constitution, the idea of presidential form of government is derived from the US system. However, the safeguards provided in the US constitution to prevent a situation where individual electors might be inclined to choose a leader from their own tribal and political circle, creating the danger of a crippling post-election deadlock are not provided in the Afghanistan constitution. Afghanistan is a deeply divided state with as many as 14 recognised ethnic nationalities. It is also divided along linguistic and sectarian lines. These safeguards are necessary to give confidence to ethnic and religious minorities that they will not be swept by the tyranny of majority in the name of democracy. Under article 6, the presidential candidate is not obliged to provide the names of two vice presidential running mates on the panel from another ethnic group or region. There is also no provision to break a tie if the two vice presidential candidates receive the same number of votes as happened in the US elections in the year 1800 resulting in a political crisis and leading to 12th amendment.

The 2004 constitution mentions ‘national treason’ twice in articles 69 and 78 but it does not define what constitutes national treason and what should be the sentence for a person who commits this crime and is convicted by the courts.

In articles 3 and 35, the constitution says that no law shall be enacted that contravenes the “tenets and provisions of the holy religion of Islam” and that “manifestos and charter of political parties shall” also abide by this restriction. However, in article 34 relating to the right of expression, no restriction is placed on individuals to respect the religion of Islam and refrain from expression of “thoughts through speech, writing, illustrations, as well as other means” that attack the beliefs, principles and values of Islam, as enshrined in the Quran and sunnah, including attacks on the Quran, the personality of prophet Mohammad and members of his noble household, and his companions.

Articles 7 and 8 relating to multilateral and bilateral relations of Afghanistan should be amended to state that “the the guiding principles of Afghanistan’s foreign relations will be: promoting regional and global peace and cooperation, respecting the territorial integrity of other states, pursuing friendly relations with Islamic and other countries, applying the UN principles of non-interference in the internal affairs of other countries, and actively pursuing mutually beneficial economic and trade relations with Afghanistan’s regional and external partners.

Afghanistan has been through wars for most of its history. Defence of the fatherland is a quintessential part of the Afghan national character. However, the document is silent about the composition and mandate of the armed forces of Afghanistan and the appointment of the chiefs of the army and air-force. The constitution also does not mention that the military commanders will be subservient to civilian authorities and overthrow of a civilian elected government by the military overtly or covertly will amount to national treason and invoke capital punishment for those involved in treason. Only under the powers of the president, article 64.3 states that the chief executive of the country is the commander in chief of the armed forces.

The 2004 constitution incorporates the concept of social welfare by making the state responsible for providing free of charge education up to college level (article 43), free healthcare and medical facilities (article 52) and financial support to families of martyrs and handicapped persons (article 53). However, the constitution does not state anywhere that the country will follow the principles of social welfare economy. Instead, the constitution declares in article 10 that the state shall protect and encourage market economy. The article should be amended to say that “the guiding principles of Afghanistan’s economy will be Islamic social welfare system and a privately-owned but state-guided free trade and individual enterprise that supports investment, services, equality of opportunity for all citizens, and fair division and circulation of national wealth.”

The 2004 constitution is silent about the territory that comprises the state of Afghanistan. Articles 1 and 21 should be amended to read: “the territory of a sovereign, independent and unitary Islamic Emirate of Afghanistan shall comprise 34 provinces (wilayaat) each of which will be an integral part of the indivisible Afghan state. The capital of Afghanistan shall be Kabul.”

The articles relating to the judiciary should be sufficiently amended to incorporate in the country’s criminal justice system the traditional Afghan system of dispensing justice by involving the local jury and fast tracking the process to avoid delays in the judicial process. This system has been practiced by Taliban in the areas under their control and was popular with the people.

The texts of the oaths of the President, ministers and higher judiciary in articles 63, 74 and 119 should be removed from the main body and placed as annex to the constitution.

Given that Taliban will need to satisfy many smaller minority groups and ethnic populations about the decisions they make in the new government, there is a need to expand the composition of the House of Elders (Mashrono Jirga) hundred percent from the present 102 to 204. Of these, 102 members should come through the procedure stated in article 84 of the 2004 constitution but the other 102 members should consist of the tribal leaders and religious elders representing the ethnic and regional breadth of Afghanistan, as well as gender representation, irrespective of whether they supported the Taliban or the previous governments. These representatives should be elected by the local Jirgas of people from their respective tribes and regions for a fixed but renewable term.

If Taliban use the present constitution as the basis of forming a new government, President Ashraf Ghani’s escape from Kabul together with his entire team of two vice presidents, foreign minister and other ministers, makes it impossible to implement articles 67 and 68, as well as 69 to appoint a new chief executive and his team through fresh elections. The Taliban can also ignore the procedure of forming a new government in the 2004 constitution but still announce new elections within 3 to 6 months. However, holding elections  before a new constitution is agreed and adopted would be a meaningless exercise and could weaken their hold on power.

For amending the existing 2004 constitution, Taliban can use the procedure provided under article 150 of the 2004 constitution. They can use the present independent commission (article 157) or appoint a new independent commission to amend the 2004 constitution. Alternately, they can dismiss the previous Loya Jirga and start the process of drafting the constitution from the scratch. However, they should not throw away the work that has been done so far and has the agreement of many parties and groups, if not them. They should therefore announce a new interim and inclusive administration with a view to drafting, as a first step, a new constitution in a period of 12 to 18 months, using the 2004 constitution as the basis of their new draft. In the next stage, the new draft constitution can then be presented for a national debate. The government can then convene a Special Loya Jirga, constituted only for the purpose of discussing and approving the new constitution. This should be followed by an announcement for a free, inclusive and multi-party election in Afghanistan, observed by local and international observers, hopefully in 2024 or earlier, if possible.

*The author Syed Sharfuddin is a regular contributor to the Weekender. He is a former Pakistan diplomat and a former Special Adviser for Political Affairs in the Commonwealth Secretariat, UK (2000-2006). He is also a former ex-officio board member of the Commonwealth Human Rights Commission, UK Chapter.