The Constitutional Conundrum: Afghanistan's Quest For Governance

Afghanistan has had several constitutions throughout its history, including in 1922, 1923, 1964, and 2004. The 2004 Constitution of Afghanistan was the supreme law of the Islamic Republic of Afghanistan from 2004 until 2021, when the Taliban overthrew and dissolved the Islamic Republic. The 2004 Constitution was then formally abolished by Supreme Leader Hibatullah Akhundzada in late 2022.

The 2004 Constitution was drafted by a 35-person commission, with input from nearly half a million Afghans in a series of public meetings. It established a presidential system with executive, legislative, and judicial branches, and provided for an elected president and national assembly. The constitution also guaranteed civil liberties such as freedom of religion, freedom of expression, and freedom from torture.

The 2004 Constitution of Afghanistan

The constitution evolved from the Afghan Constitution Commission mandated by the Bonn Agreement. It provided for an elected President and National Assembly. The first presidential elections after the new constitution took effect were held in October 2004, and Karzai was elected to a five-year term. The constitution describes a presidential system where the executive branch of government is composed of a popularly elected President and two Vice Presidents. The President appoints the ministers, the attorney general, and the justices of the Supreme Court.

The legislative authority in Afghanistan is a bicameral National Assembly with a House of People (Wolesi Jirga) and a House of Elders (Meshrano Jirga). The Wolesi Jirga, the more powerful house, consisted of a maximum of 250 delegates directly elected through a single non-transferable vote (SNTV) system. Members were elected on a provincial basis and served for five years. At least 64 delegates were women, and ten Kuchi nomads were also elected among their peers. The lower house passed laws, approved budgets, and ratified treaties, all of which required subsequent approval by the Meshrano Jirga.

The Meshrano Jirga consisted of an unspecified number of local dignitaries and experts appointed by provincial councils, district councils, and the President. The President also appointed two representatives of the physically disabled.

The nation's top court was the Stera Mahkama (Supreme Court). Its members were appointed by the President for 10-year terms. There were also High Courts, Appeals Courts, and local and district courts. Eligible judges were trained in either Islamic jurisprudence or secular law. Courts were allowed to use Hanafi jurisprudence in situations where the Constitution lacked provisions.

The constitution divides Afghanistan into 34 provinces, each governed by a provincial council with members elected for four-year terms. Provincial governors are appointed by the President. Provinces are divided into districts, which contain villages and towns. Every village and town also have councils, with members serving for three years.

The constitution guarantees civil and human rights, including the right to life and liberty, privacy, peaceful assembly, freedom from torture, and freedom of expression and speech. Citizens also have the right to be informed of charges if accused of a crime, to representation by an advocate, and to the presumption of innocence. The constitution also provides for free education and healthcare for all citizens.

The constitution describes Islam as its sacred law and the most commonly practised faith in Afghanistan. Followers of other religions are "free to exercise their faith and perform their religious rites" within the limits of the law.

The Islamic Republic of Afghanistan

Afghanistan has had several constitutions throughout its history, with the most recent being the 2004 Constitution of Afghanistan, which was the supreme law of the Islamic Republic of Afghanistan from 2004 to 2021. This constitution was created following the successful efforts of a United States-led international coalition in alliance with local Afghan groups to overthrow the Taliban in 2001. The 2004 Constitution provided a legal framework between the Afghan government and its citizens, establishing a presidential system with executive, legislative, and judicial branches.

The constitution was drafted by a 35-member team, including Afghans and foreign legal experts, who spent a year working on it. Nearly half a million Afghans provided input during a nationwide series of public meetings. The final version was released in November 2003 and was approved by consensus in January 2004 after the 2003 loya jirga (grand council). It consisted of 162 articles and was officially signed by then-interim President Hamid Karzai.

The 2004 Constitution transformed Afghanistan into a modern democracy, providing for an elected President and National Assembly. The National Assembly consisted of two houses: the Wolesi Jirga (House of the People) and the Meshrano Jirga (House of Elders). The Wolesi Jirga, as the more powerful house, had up to 250 delegates directly elected through a system of single non-transferable votes. It was responsible for making and ratifying laws, approving the actions of the president, and had veto power over senior appointments and policies. The Meshrano Jirga, on the other hand, consisted of local dignitaries and experts appointed by provincial and district councils, as well as the president. While it also ratified laws, its decisions about the state budget and development programs could be overruled by the Wolesi Jirga.

The constitution also established a judicial branch with the Stera Mahkama (Supreme Court) at the top. Its members were appointed by the president for 10-year terms. There were also High Courts, Appeals Courts, and local and district courts. Judges could be eligible with training in either Islamic jurisprudence or secular law.

The 2004 Constitution guaranteed certain civil and human rights, including the right to life and liberty, privacy, peaceful assembly, freedom of expression and speech, and freedom from torture. It also addressed religious freedom, designating Islam as the sacred law and the most commonly practised faith in Afghanistan. Followers of other religions were allowed to practise their faith within the limits of the law. Additionally, the constitution recognised Afghanistan's ethnic diversity, granting each of the nation's ethnic groups the right to speak their own language.

However, the 2004 Constitution was not without its flaws. One of its biggest criticisms was that it created an overly centralised unitary state in an ethnically diverse country. This centralisation extended not only to central-provincial relations but also to the imbalance of power between the National Assembly and the president. The constitution's failure to adequately address power-sharing and local governance contributed to the problems facing Afghanistan, including the resurgence of the Taliban.

The 1964 Constitution of Afghanistan

The constitution was intended to prepare the government and the people for a gradual movement toward democracy and socioeconomic modernisation. It transformed Afghanistan into a modern democracy, with the country becoming a constitutional monarchy. The constitution set out the following motivations:

• To reorganise the national life of Afghanistan according to the requirements of the time and on the basis of the realities of national history and culture
• To achieve justice and equality
• To establish political, economic and social democracy
• To organise the functions of the State and its branches to ensure liberty and welfare of the individual and the maintenance of the general order
• To achieve a balanced development of all phases of life in Afghanistan
• To form, ultimately, a prosperous and progressive society based on social co-operation and preservation of human dignity

The constitution was filled with provisions intended to assure that the royal government would not lose control. For example, the cabinet was to exercise the monarch's powers, including the initiation of all government policy and the invocation of emergency decrees. The constitution also prohibited official or political activity by any member of the royal family other than the monarch.

The first parliamentary elections under the new constitution were held in August–September 1965 and saw two women elected to the House of the People. However, the constitution's democratic features were especially provisional, and the liberal or constitutional experiment that followed has been generally seen as a political failure. The cabinet and legislature were constantly deadlocked, unable to enact laws vital to the constitution or seriously weakening it through long delays.

The Taliban's impact on the constitution

Afghanistan has had a tumultuous history with its constitution. The country's first constitution was written during the reign of Emir Abdur Rahman Khan in the 1890s, followed by another in 1923. The 1964 Constitution of Afghanistan was the supreme law of the Kingdom of Afghanistan from 1964 to 1973, when it was annulled following a coup d'état.

The 2004 Constitution of Afghanistan was the supreme law of the Islamic Republic of Afghanistan from 2004 to 2021. It was approved by consensus in January 2004 and was officially signed by Hamid Karzai on January 26, 2004. The constitution was created by a 35-member team that included Afghans and foreign legal experts. It established a presidential system that divided government power among executive, legislative, and judicial branches.

The Taliban's actions have drawn international condemnation, with the UN documenting numerous human rights violations. The West, led by the United States, has attempted to influence the Taliban's behaviour by reducing financial support. However, the Taliban have largely ignored demands to protect women's rights and cut links with international terrorist groups.

The Taliban have expressed their dissatisfaction with the 2004 Constitution, labelling it "invalid, copied from the West, imposed on a Muslim society, and arbitrarily implemented." They have indicated that for the constitution to be acceptable, it must be based on Islamic principles, national interests, and historical achievements, ensuring human dignity, national values, social justice, and human rights.

The future of Afghanistan's constitution remains uncertain. The Taliban have not proposed a specific alternative to the previous method of governing, but their actions indicate a commitment to a strict interpretation of Islamic law and a rollback of progress on women's rights and civil liberties.

The structure of governance

Afghanistan's government has been described as a totalitarian emirate within an Islamic theocracy, with the Taliban holding a monopoly on power. The Taliban's government is self-described as "interim", and rules by decree, with judges and Taliban fighters deciding how to apply the law on the spot based on their interpretation of Sharia.

The supreme leader, Hibatullah Akhundzada, has authority over all political, military, religious decisions, and government appointments. The supreme leader works alongside the Rahbari Shura (Leadership Council), which has 26 members and assists with the governance of Afghanistan. The council appoints individuals to key positions within the cabinet, including the Prime Minister, Deputy Prime Minister, Minister of Foreign Affairs, and Minister of the Interior.

The current caretaker cabinet was presented in September 2021 and is led by Hibatullah Akhundzada, who became head of the Taliban in 2016. The Prime Minister, Mohammad Hassan Akhund, was selected as a compromise candidate between moderate and hardline Taliban factions. There are two Deputy Prime Ministers, Abdul Ghani Baradar and Abdul Salam Hanafi. The cabinet, not including Hibatullah Akhundzada, has 33 ministers, all of whom are men.

The Taliban views the Quran as its constitution. An ulema (scholars) council drafted a dastur (basic law), which was approved by the Supreme Court in 1998 and re-authorized for the insurgency in 2005. The dastur names Mullah Omar as Supreme Leader and places the highest authority in that position, but does not outline a selection process or constraints of the office.

The Taliban has stated that a new constitution would be drafted only through an open consultative process rather than being imposed on the country unilaterally. An exploratory committee on the drafting of a constitution was formed in early 2022, but no updates have been given.

Historical Context

Afghanistan has been governed by various systems, including a monarchy, republic, theocracy, dictatorship, and a pro-communist state.

The 2004 Constitution of Afghanistan, approved by consensus in January 2004, provided for an elected President and National Assembly. The constitution was officially signed by Hamid Karzai on January 26, 2004, and was the supreme law of the Islamic Republic of Afghanistan from 2004 until 2021, when it was abolished following the Taliban takeover.

The 2004 Constitution established Afghanistan as an Islamic Republic, with Islam as the official religion of the state. It also established a democratic regime and provided for the separation of powers under a presidential system, with a strong executive, a bicameral legislature, and a judiciary.

The National Assembly of Afghanistan consisted of two houses: the Wolesi Jirga (House of the People) and the Meshrano Jirga (House of Elders). The Wolesi Jirga was the more powerful house, with up to 250 delegates directly elected through a system of single non-transferable votes. The Meshrano Jirga consisted of local dignitaries and experts appointed by provincial and district councils, and the President.

The constitution also provided for civil and human rights, including the right to life and liberty, privacy, peaceful assembly, freedom of expression and speech, and freedom from torture.

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