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| Volume XII, Spring 2005, Number 1 |
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| ABSTRACT: Afghanistan's Constitution: Success or Sham? |
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| Carol Riphenburg |
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Dr. Riphenburg is a professor of political science at the College of DuPage, Glen Ellyn, IL.
Afghanistan's Constitution: Success or Sham?
Following years of war, Afghanistan's Constitutional Loya Jirga (grand council) approved the country's seventh constitution on January 4, 2004. Why is the adoption of a constitution so important to political development and what functions does it serve? What is the significance of the institutional framework it creates; and how compatible is Af-ghan political culture with the Western notions of state and democracy underscored in the constitution? Lastly, what significance does a constitution have even when constitutionalism per se is weak?
Afghanistan will probably tread the path of constitutional evolution and limited government followed by other developing countries, where it is a weak and uneven force. A nation's first steps in democracy may begin with the drafting and approval of a constitution. Deeply divided societies in which no single faction can impose its view might find an ability to thrash out a series of political compromises in constitutional form. Once momentary political compromises outlive the circumstances in which they originated and transform themselves into enduring institutional arrangements and processes, constitutionalism has prevailed. The result is to plant constitutionalist seeds.
The overriding achievement of the Constitutional Loya Jirga was to institute a basic foundation of law that reflects Afghan traditions and will help safeguard democratic values and human rights for the future. Afghans openly discussed differences on volatile issues in an assembly representing the whole country. Tens of thousands of Afghans attended the Afghan equivalent of constitutional town meetings over a period of two months prior to December 2004. Then 502 of them descended on Kabul to spend long days and nights in a big tent debating the actual document at a loya jirga, a widely accepted Afghan institution for achieving consensus among disparate tribes and ethnic groups.
Yet, can this new document be easily implanted into Afghan circumstances? Afghanistan's cultural identity includes the traditions of tribal leadership (succeeded by kingship), Islam, Pashtun dominance with ethnic diversity, and bouts of surface democracy. The latest round of constitution drafting may be another chapter in the country's long, painful search to become a state, to define itself and its place within the world around it. With disarmament proceeding intermittently, reconstruction unevenly taking place, opium production booming, refugees returning, insecurity prevailing in the south and east, and a police force and national army struggling, Afghan citizens may be dazed and confused.
Ultimately, discussion of a country's constitution or governmental institutions centers on the concept of state. In this regard, Afghanistan has never had a central state strong enough to penetrate the entire country. Afghanistan's ratification of a constitution in the wake of the collapse of Taliban rule is in harmony with a worldwide trend. Still, with the record of authoritarianism in the Middle East and South Asia all too real, prospects that Afghanistan's constitution can signal a movement toward constitutional government in all but the most incremental of steps are problematic. Failure in state building has been the critical factor in generating and perpetuating turmoil in Afghanistan. How can the future be different, or a new constitution be meaningful, while this problem remains? It certainly is a challenge; but for the first time in decades, the government has imposed taxes. In seeking to implement what's possible in the prevailing circumstances, the government is doing what it can to collect money and establish administrative reach at the expense of local commanders, i.e., to work towards becoming a state.
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