Published on Wednesday, January 7, 2004 by the International Herald Tribune
Flawed Charter for a Land Ruled by Fear
A Sordid Tale of Vote-Buying, Death Threats and Naked Power Politics Lies Behind Afghanistan’s Flawed New Constitution
by John Sifton
A new Afghan Constitution was finally approved in Kabul on Sunday by delegates at a special constitutional loya jirga, or grand council. United Nations, U.S. and Afghan government officials quickly hailed the agreement as an historic milestone - an inspiring story of Afghans overcoming years of political chaos and war to charter a new government.
There is cause for celebration. That Afghanistan's political dynamics are being settled with words, instead of guns, is a welcome contrast with the country's recent past. The charter's prohibition against sexual discrimination is a victory for Afghan women, so recently oppressed by the Taliban.
Behind these achievements, however, lies a sordid tale about the process itself, involving vote-buying, death threats and naked power politics. A deeper view of the Constitution itself reveals a litany of missed opportunities and poorly crafted compromises. In short, the process was ugly - easily worthy of Bismarck's adage about politics being similar to sausage-making.
The first problem was the matter of representation at the convention. Many Afghans are asking who the delegates were who approved this new Constitution.
Well, let's put it this way: They weren't Afghanistan's finest. In fact, some are alleged war criminals. During the elections for the loya jirga convention, Human Rights Watch documented numerous cases of local military or intelligence commanders intimidating candidates and purchasing votes. In Kabul, guarded by international security forces, intelligence and military officials were openly mingling with candidates at an election site. Many candidates complained of an atmosphere of fear and corruption.
In areas outside of Kabul, many independent candidates were too afraid to even run. In a few cases, factional leaders themselves were elected - despite rules barring government officials from serving as delegates. The majority of the 502 delegates to the loya jirga were members of voting blocs controlled by military faction leaders, or warlords. Some good people were elected, but they were outnumbered - and scared.
The second problem was the convention itself. Despite a strong showing by regional warlords, some of them bent on disrupting the process, the loya jirga that began more than three weeks ago was very much a scripted affair. President Hamid Karzai issued a draft Constitution a few months ago, and as the loya jirga got under way in December many delegates discovered that the meeting seemed to be no more than a ceremony to push though approval for that draft. Many delegates complained that both the warlords and Karzai's allies were sweet-talking, intimidating and even bribing delegates. The situation angered not only the few legitimate representatives, who had come to discuss issues in earnest, but several military factions as well.
In the end, most of the convention was wasted on debates between Karzai's people and the warlord factions, who were demanding various concessions, most of them to benefit their narrow interests. Many important provisions were not effectively debated.
The third and final problem was the Constitution itself. The charter accepted on Sunday contains the fundamentals for a future governmental system, but is a disappointingly tepid document. Despite Afghanistan's recent history of mass atrocities, the charter does not directly address issues of Afghanistan's past. There are several provisions enunciating basic political, civil, economic and social rights, but little strong language creating institutions to uphold them.
The Afghan Independent Human Rights Commission, created by the December 2001 agreement, is given a mandate, but lacks many of the powers necessary for it to credibly protect basic rights. The role of Islamic law, and its relationship to human rights protections, is not adequately addressed - a worrying situation given that certain factions in Kabul will try to use their power in coming years to implement conservative interpretations of Islam that may violate human rights standards.
It didn't have to be this way. For much of the last two years, the United States and its coalition allies have allowed Afghanistan's countryside to be dominated by the warlords, originally armed and financed by the United States to fight the Taliban. U.S. officials have attempted to blunt this situation's worst effects by throwing their support behind President Karzai and a small team of competent and Western-educated officials in Kabul, known in Afghanistan as "the technocrats."
A better solution would be for the United States and its international partners in Afghanistan to try harder to create real political pluralism and strengthen legitimate representation throughout the country. Such efforts are especially important given that elections are taking place this year. As things currently stand, most independent political organizers are too afraid to organize; the general atmosphere of fear prevents even journalists in most areas from writing openly about Afghanistan's problems.
If the United States really cares about creating democracy in Afghanistan, it should work harder to expand international security forces - not just a few small military teams as has been implemented - and ask the United Nations to expand its human rights monitoring and protection officers, who are usually the best situated to provide protection for vulnerable persons and groups.
It's too early to be sanguine: Afghanistan is not out of the woods yet.
The writer is Afghanistan researcher for Human Rights Watch.
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