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  • Crafting a Constitution for Afghanistan
  • Barnett R. Rubin (bio)

On 4 January 2004, Afghanistan approved a new constitution that represents a key step forward in its political reconstruction. This article analyzes the crafting of the new Afghan basic law, from the Bonn Accords in December 2001 to the January 2004 Constitutional Loya Jirga. It discusses the obstacles overcome and the compromises made as this multiethnic country laid down the foundation for democratic government. The author also discusses whether this new constitution will enable the country to surmount the many challenges that lie ahead.

On 4 January 2004, nearly all 502 members of the Constitutional Loya Jirga (Grand Council) meeting in Kabul silently stood to approve a new constitution for the "Islamic Republic of Afghanistan." President Hamid Karzai signed and officially promulgated the document on 26 January 2004, inaugurating Afghanistan's sixth constitution since King Amanullah Khan promulgated the first in 1923. Delegates hoped that this relatively liberal Islamic constitution would provide a framework for the long task of consolidating basic state structures, as the country struggled to emerge from decades of anti-Soviet jihad, interfactional and interethnic civil war, and wars of conquest and resistance by and against the radical Islamists of the Taliban movement. In his speech to the closing session of the Loya Jirga, President Karzai explained why he thought that the new constitution—which mandated a presidential system with a bicameral parliament, a highly centralized administration with unprecedented rights for minority languages, and an Islamic legal system safeguarded by a Supreme Court with powers of judicial review—would meet the needs of a desperately indigent but proud country searching for a period of stability in which to rebuild.

The constitution was the next to last step in the road map to "reestablishing permanent institutions of government" outlined in the Bonn Accords of 5 December 2001. Afghans signed that agreement under UN auspices as the United States was completing the job of routing the Taliban regime that had given refuge to Osama bin Laden. The constitution provided a framework for the "free and fair elections" to choose a [End Page 5] "fully representative government" that were to complete that process. But two and a half years—the time frame of the Bonn Agreement—could hardly suffice to turn a failed state into a stable democracy. Whether the constitution, and with it the international effort in Afghanistan, could achieve its stated goals still depended on efforts beyond its scope, such as demobilizing militias and eradicating the drug trade and other illicit activities that accounted for more than a third of the Afghan economy.

Unlike some postwar agreements, the Bonn Accords set out a process rather than a detailed settlement of major political issues. This reflected the time pressure under which the Accords were forged, which set a speed record as such things go. Afghanistan had been through 23 years of many-sided civil strife marked by the overt and covert involvement of regional and global powers, yet only nine days elapsed between the UN's opening of talks in the former West German capital and the affixing of signatures on 5 December 2001.

Once U.S. president George W. Bush announced on October 1 that the United States would support a political transition and a UN-coordinated reconstruction program in Afghanistan, the pressure was on to cobble together a successor regime to the ousted Taliban movement, whose rule had sheltered al-Qaeda while that organization made Afghanistan into its base for global terrorism.1 Four Afghan groups participated in Bonn. The two most important were the Islamic United Front for the Salvation of Afghanistan, commonly known as the Northern Alliance (NA), which had received the bulk of U.S. military assistance leading up to and during the military operations that began on October 7, and the "Rome group" representing exiled King Muhammad Zahir Shah, a resident of the Italian capital since his overthrow by a 1973 military coup.

The NA represented force on the ground and a mixture of ethnic claims with those of politicized Islam, both Sunni and Shi'ite. Figuring prominently in NA ranks were members of such northern and central ethnic groups as the Tajiks...


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