REVIEW: Article

We, The People of Afghanistan…

The people of Afghanistan achieved another significant milestone on the path toward creating a democratic nation-state. On January 4, 2004, President Karzai signed our new Constitution into law. Five hundred and two Afghans from all walks of life and every province and community of the country, including nomads, refugees, internally displaced people, men and women, tribal leaders, college professors, international bankers, shopkeepers, Pashtuns, Tajiks, Hazaras, Hindus gathered together in the traditional Loya Jirga or Afghan Grand Council, put all intricate issues on the table, and after three weeks of intense debate and emotional deliberations adopted with near unanimous acclamation the most progressive Constitution in the region.                                                                                                   

A passage from the preamble of our new Constitution sets the course for the direction my country has taken:

“We, The People of Afghanistan…for the creation of a civil society free of oppression, atrocity, discrimination and violence and based upon the rule of law, social justice, protection of human rights, and dignity and ensuring the fundamental rights and freedoms of the people…have adopted this Constitution in compliance with the historical, cultural and social requirements of the era….”

A Balanced Charter

The national charter that has been adopted is balanced and provides for equal rights and full participation of women. It seeks and finds an equilibrium between building a strong central executive branch (to further strengthen national unity and rebuild the national institutions that were destroyed by foreign interference or factional fighting), and respecting the rights of volition of the provinces to exercise more authority in managing their local affairs by institutionalizing district and provincial level councils.

The new Constitution provides for checks and balances between a strong presidency and a two-chamber National Assembly with extensive powers of inquiry, which cannot be dissolved by the President. Furthermore, it represents a careful combination of respect for moderate and traditional values of the Afghan society and adherence to the international norms of human rights and democracy.

A Powerful Executive Branch

The new Constitution establishes the President as the head of state, elected by direct majority vote. He/she will serve for a period of five years with two vice-presidents and is subject to a two-term limit. The President is the Commander-in-Chief of the armed forces and he/she appoints ministers, the attorney general, and the head of the national security directorate, members of the Supreme Court, but only with the approval of the Parliament. While the President is granted strong executive powers, his/her authority is checked and balanced through oversight by other branches. The Constitution provides for a clear impeachment process if the President commits crimes against humanity, treason or other crimes.

A Well-built Legislative Branch

The Parliament or National Assembly consists of two chambers, the Wolesi Jirga (or the lower house) and Meshrano Jirga (or the upper house or senate).  The 250 members of the lower house serve for five years and are elected in proportion to the population of each province. To insure that 25 percent of the members are women, the Constitution requires that two female delegates be elected from each of the 32 provinces of the country.  Such a high quota for women is rare in most countries, both Muslim and non-Muslim.  The President appoints one-third of the senators, 50 percent of which appointment must be women.

An Independent Judiciary

The Constitution creates an independent and able judicial branch and institutionalizes Afghanistan’s civil law system. The Supreme Court is comprised of nine members, who are appointed by the President for a period of ten years. Members of the Supreme Court can be tried in a special court for crimes committed during the performance of their duties.

An Articulate Application of Islamic Law

The new Constitution institutionalizes the civil law system in Afghanistan.  Afghanistan has very liberal penal and civil codes. The Hanafi jurisprudence of Islamic law will only be applied if there is no existing law that deals with the matter.  In addition, courts are obligated to apply the Shia school of law in cases dealing with personal matters involving followers of the Shia sect. Although 99 percent Afghans are Muslim, the Constitution in Article 2 protects the freedom of followers of other religions. Another pioneering feature of the new Constitution is that it prohibits the formation of a political party based solely on ethnicity, language and/or an Islamic school of thought.

Gender Equality and Individual Rights

Article 22 of the Constitution states that the citizens of Afghanistan—whether men or women—have equal rights and duties before the law. The Constitution prohibits the amendment of the fundamental rights of the people unless done to make such rights more effective.  The right of every person to a lawyer is guaranteed. The state is obligated to appoint a lawyer for the destitute and to insure the immunity of attorney-client communications.  The Constitution obligated the state to abide by the United Nations (UN) charter and international treaties and conventions and to create a society based on social justice, democracy and the protection of human dignity and human rights. It also specifically protects the rights of the disabled and handicapped. The Constitution, for the first time, gives Afghan citizens an unlimited right to access information from the government. The Constitution obligates the state to prevent all types of terrorist activities and the production and trafficking of narcotics and intoxicants.

The new Constitution appreciates our rich cultural, ethnic and lingual diversity and for the first time in Afghanistan and the region, recognizes all major languages as official in areas where a majority speaks such languages. Recognizing that a free market economy is a core value necessary for political democracy to succeed, the Constitution includes specific provisions requiring the state to encourage and protect investments and private enterprises, intellectual property rights and rights of authors and inventors.

An Institutionalized Human Rights Commission

The Independent Human Rights Commission set forth by the Bonn Agreement is further empowered and institutionalized by Article 58. The Commission has the right to refer cases of human rights and fundamental rights violations to the judiciary and is empowered to assist in defending the rights of the victims.

An Emerging Model

Our new Constitution proves that the investment made by the United States government and the international community to help us build our national and democratic institutions, although limited, has already yielded very impressive results. The new Constitution further reveals that our Islamic and traditional values are fully compatible, and mutually reinforcing with an open democracy. In two short years, the people of Afghanistan, in partnership with the international community, turned a neglected and pariah country over-run by the Taliban and al-Qaeda, into what President Hamid Karzai called “a center for the cooperation of civilizations.”

Led by the vision of President Karzai, Afghanistan has emerged as a model.  Afghanistan’s successful advance on the path to democracy and state building will inevitably impact upon the expectations and the aspirations of people in other arenas of the global war against terror and tyranny. A moderate, democratic and tolerant Afghanistan is indeed imparting the conclusive blow to the radicalism preached by al-Qaeda.

The Elections

The next milestone for the Afghan people is setting the stage for the first free and fair national elections under the new Constitution. The timetable for the elections is to be set forth by June 2004. President Karzai insists on holding the Presidential elections on time as scheduled, but we will not compromise the legitimacy, credibility and integrity of the process. We ask our international partners to help the United Nations in accelerating voter registration to ensure the credibility of the election process. It is crucial for us that the process gives all adult Afghans the opportunity to exercise their constitutional rights to vote in the first national elections for which they have waited so long. To date, 1.4 million out of 10.5 million eligible voters are registered. We are about to drastically increase the number of registration posts from eight to 4,000 throughout the country.

The Challenges

We are realistic about our challenges. We face the general challenge of building a state and providing for good governance, after the complete destruction of all national institutions and a severe shortage of resources and human capital. To overcome these challenges we must reform, strengthen and rebuild our government institutions to make them accountable, capable, and more representative, and we must improve local and district level governance. We must enhance government capacity to deliver services to all corners of the country, especially in areas prone to terrorist infiltration. All Afghans have not yet benefited from the peace dividend. We must eliminate corruption, nepotism and abuse of power that undermine our recovery process.

We are also facing the specific challenges of preparing the logistical and legal grounds for the election and building the institutions and the capacity needed to prepare and enact the enabling laws required by the new Constitution.

We also continue to confront security challenges posed by the terrorists and other elements.  To overcome security challenges we must expedite the process of building our national army and professional police force.  We have asked our international partners to enhance security in the provinces by expediting the deployment and presence of the International Security Assistance Force (ISAF) and/or the Provincial Reconstructing Teams (PRTs). We welcomed the North Atlantic Treaty Organization (NATO) and the UN decision to expand ISAF outside of Kabul and to increase the number of PRTs from nine to 15 before the election. We must accelerate the demobilization, disarmament and reintegration program, and prevent extremists from high-jacking democracy and the nation-building process for personal gain or factional agenda.

Narcotics pose a serious challenge for all of us. Cultivation and trafficking of narcotics go hand in hand with terrorism and warlordism.  It is in our best national interest to fight them all. President Karzai is committed to mobilizing all of our resources in the fight against narcotics. We know Afghanistan’s heroin, which sells on the retail market for one hundred times the farm gate price, is one of the sources of the illegal money that funds international terrorism and crimes across the region. It also finances the destabilizing activities of warlords and criminals in Afghanistan. The international community and our government cannot afford to wait as these destructive trends reverse our recovery process and further endanger global security. Comprehensive and accelerated efforts are needed to break this vicious cycle. We shall mobilize all available resources to fight drugs in Afghanistan. The government of Afghanistan has adopted a National Drug Strategy aimed at drastically reducing poppy cultivation, encouraging alternative income streams, destroying drug labs, strengthening law enforcement, training specialized national police units, and developing the justice sector to facilitate the proper prosecution and sentencing of traffickers.

To overcome these challenges and to make the nation building process in Afghanistan irreversible, Afghans need and demand the accelerated support and the sustained engagement by the United States of America and the international community. Afghans cherish the growing partnership and warm friendship forged between our two nations.

The successful implementation of Afghanistan’s exemplary Constitution is inextricably linked to President Karzai’s cooperation of civilizations concept and our partnership with the international community. The Afghan Constitution is a significant achievement in our common fight against terrorism. By helping Afghanistan sustain this important milestone, the United States and other nations are helping to provide the future blueprint for democracy in similar societies, the very best antidote to extremism and terrorism.

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Ambassador of Afghanistan to the United States