Ginsburg and Huq on the Afghan Constitution at Ten
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.