Loya Jirga: Roundup of Proceedings

Tuesday, 27 January, 2004

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IWPR staff

The approval of a new Afghan constitution took weeks of wrangling between delegates at the Loya Jirga, or Grand Assembly, and represents a compromise between various interest groups.

The 502 members of the Loya Jirga, who had been debating amendments to a draft constitution since mid-December, passed the final version on January 4.

The document sets out the basic institutions for a constitutional democracy in which Islam is accorded a central role, and in theory should make it possible to hold elections this year, as envisaged in the original Bonn agreement of December 2001.The document proscribes a strong presidential system with a two-chamber national assembly.

Observers say the new constitution could help bolster the rights of Afghan women and help resolve ethnic rivalries within the country.

Although some have expressed reservations about the way in which the document was drafted and amended - often far from the floor of the grand tent - it has been widely hailed as a step forward for Afghanistan.

IWPR carried daily updates of the proceedings and analysis of the issues raised at the Loya Jirga. Following is a round-up of events at the meeting, as covered in our reports. There are links to relevant stories.

ORGANISING THE LOYA JIRGA

The adoption of a new Afghan constitution marks the end of a long process which began on October 2002, when Karzai appointed the Independent Constitution Drafting Commission to prepare an initial draft.

A Constitutional Review Commission, set up in April 2003 to organise public involvement in the process, organised over 500 gatherings nationwide at which the constitution was discussed by around 150,000 people, giving officials a chance to gauge public opinion on the matter. Radio programmes, posters and a magazine were also produced in an effort to make the document more accessible to the general public.

After a series of delays, the draft constitution was finally presented to the Loya Jirga for debate on December 14. At this sitting, the assembly consisted of 502 delegates, 450 elected to the post and 52 appointed by the president. They met in a vast marquee on the grounds of Kabul Polytechnic.

On the first day of the sitting Sibghatullah Mujaddidi, a moderate ally of Karzai and one of the president’s 52 handpicked delegates, was voted chairman. Four deputy chairpersons, including female delegate Safia Saddiqi, were also selected. (See Moderate Chosen to Chair Gathering)

The Loya Jirga was now ready to begin debating the constitution, amending and approving the draft piecemeal until all delegates approved of its content.

The assembly was broken up into ten working committees, each of which chose its own head. The committees then debated the legal provisions in private and their views were passed on to a coordinating committee whose 38 members were made up of the leaders of the working committees and their deputies, representatives from the drafting commission, observers from the United Nations Assistance Mission in Afghanistan and the elected leadership of the Loya Jirga.

The commission had the task of formulating revised drafts of constitutional articles in light of the feedback from the working committees, and presenting them to the whole Loya Jirga assembly so they could be accepted or rejected.

RESERVATIONS ABOUT THE PREPARATIONS

A number of observers were critical of the way the Loya Jirga, and the drafting and public consultation processes leading up to it, were organised.

Some resented the enormous influence wielded by the former militia commanders and many even said the former mujahedin representatives – or “jihadis” – were so powerful that they were afraid to disagree with them. (See: Delegates, Journalists Report Threats, Intimidation)

One female delegate, Malalai Joya from Farah province, caused outrage on December 17 when she spoke out against the mujahedin leaders, saying many of them were war criminals who should face trial. Delegates called her a communist and an atheist – both serious insults in Afghanistan – and Mujaddidi tried to have her removed, although he later said he had simply been concerned for her safety. (See Outspoken Joya in Defiant Mood, Joya Speech Breaks Wall of Silence, Mujahedin Denounced)

Mohammad Ashraf, a delegate from Mazar-e-Sharif, told IWPR that the way the assembly had been broken down into working groups increased the influence of the mujahedin. “I am opposed to these committees and groups,” he said, “because all the jihadis stand at the top of the groups and they want to impose their beliefs on others.” (See Jihadi Groups Win Key Constitutional Points, Jihadi Presence Questioned)

Also see: Jihadis Boycott Committee Work, Concern Jihad Chiefs Given Political Clout

Others were unhappy that former Taleban officials were allowed to take part in the assembly, although Afghanistan’s Independent Human Rights Commission said it had no problem with this because they had been elected by the people. (See Taleban Officials Come to the Table)

Some female delegates also said they felt intimidated by the atmosphere in the assembly. (See Women Still Silenced, Leading Female Delegate Denied Platform)

Other observers expressed reservations about the processes leading up to the Loya Jirga sitting. The International Crisis Group think-tank said the drafting process was undemocratic and favoured factions already in power. Others said the election of delegates was badly organised and there were also signs that the attempts at public consultation had been largely unsuccessful. See Election ‘Cattle Market’ for Delegates, Villagers: High Hopes but Few Specifics, Provincial Election Trouble)

PRAISE FOR ASSEMBLY’S ACHIEVEMENT

These expressed reservations notwithstanding, reactions to Afghanistan’s new constitution have been largely positive.

While chairman Mujaddidi waxed lyrical about the “pious and beautiful” conclusion to the Loya Jirga, President Karzai said the aspirations of all Afghans had found a place in the new constitution.

“I want Afghanistan to be cleared of prejudice and hate,” he said. “I want an Afghanistan in which everyone respects each other.”

But he noted that there is much work still to be done. “The constitution cannot exist just on paper,” he said. “The constitution will be law when it is practiced. And I will implement this law. And if I don't, remove me.”

UN special envoy Lakhdar Brahimi told delegates at the ceremony that the UN was pleased with their work. “Is the constitution perfect? Probably not,” he said. “Will it be criticised? I feel it will be, inside Afghanistan and outside Afghanistan. But you have every reason to be proud and see this as a new source of hope.”

(See Afghans Approve a New Constitution, Against the Odds, National Unity Prevails)

GOVERNMENT STRUCTURES

Laying the foundations for future Afghan politics, the new constitution describes a presidential system with a two-chamber parliament, the National Assembly. The assembly consists of the Wolesi Jirga, or House of the People, whose members are elected, and Meshrano Jirga, or House of the Elders, made up of a mixture of elected and appointed representatives.

The president is directly elected and, as head of both state and government, appears to have wide-ranging powers. There will be two vice-presidents, named as running-mates when presidential candidates declare themselves. The president has to be over 40, and a Muslim.

Former king Zahir Shah is named “Father of the Nation” – a purely ceremonial title which will disappear on his death.

Whilst largely carrying this system through from the original draft, delegates added the proviso that parliamentary approval be required for the president’s decisions concerning matters of state policy. It remains to be seen how this will be interpreted and whether it will hamstring the president, or prove to be a mere formality. (See Strong Central Government Urged)

The new constitution requires that “every effort” be made to hold the first round of parliamentary and presidential elections at the same time. In the meantime, the current government will fulfil the roles assigned to the national assembly in the constitution. This has been amended from the original draft, which required that parliamentary elections be held within a year of presidential elections.

The final document also contains a provision for a commission to oversee the implementation of the constitution itself, apparently intended to replace the Diwan-e-Aali, or High Council, a supervisory body proposed by delegates from the former mujahedin parties, or “jihadis”, at an earlier stage in the proceedings.

It is not entirely clear what the alternative commission’s role will be, or whether it will have the power to rule on the constitutionality of new laws – a task otherwise assigned to the Supreme Court – but its creation was an important compromise in accommodating to some extent the wishes of the mujahedin delegates. Many had feared that the proposed Diwan-e-Aali would be dominated by mujahedin leaders, giving them free rein to interpret and implement the constitution on their own terms. (See Articles Altered in Constitution)

ROLE OF RELIGION

Discussion of religious issues throughout the three-week sitting was heated and a number of delegates took part in a boycott on January 1. The boycotters gave a variety of reasons, though many of them were jihadi leaders or their supporters. Another group was protesting that assembly chairman Sibghatullah Mujaddidi called them atheists for suggesting that the word “Islamic” should be left out of the proposed title “The Islamic Republic of Afghanistan”. (See: Delegates Boycott Vote on Constitution)

The final document states explicitly that “The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam”, thus putting the faith at the heart of the state as well as its people.

Whilst Islamic law is given an explicit place in the final draft it is, at least on the face of it, a limited role. Article 130 says that Hanafi jurisprudence – the school of Sunni law that prevails in Afghanistan – should provide a guide when no explicit laws apply. At the same time, Article 131 says Shia jurisprudence should be used in personal matters affecting the minority religious community, or when no other laws apply. (See Shia Make Constitutional Gains)

The overarching system described is a civil law system. The clergy have no official status as such, and it is also stated that, “Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of the law”.

But much could depend on Article 3 – “In Afghanistan, no law can be contrary to the sacred Islamic beliefs and commands” – which some say could, in the hands of a conservative Supreme Court, open the back door to Sharia law. (See: Islam Awarded a Greater Role in Government, Constitution Must Have Islamic Framework)

WOMEN’S RIGHTS

Women were far better represented in the latest Loya Jirga than at the emergency session held in June 2002, where only 200 of the 1,650 delegates were female. This time there were 100 women out of 502 members. Two female delegates were elected by assemblies of women in each of the 32 provinces, with another six representing special groups including Kuchi nomads, domestic refugees and Afghans living in Iran and Pakistan. Another five were elected in general provincial elections, in which they ran along with male candidates. A further 25 were appointed by President Hamed Karzai himself.

Women were also represented in the leadership of the Loya Jirga. Mujaddidi appointed female delegate Safia Sediqi as one of four deputy chairpersons, and two of the assembly’s four secretaries were women. (See: Women Still Silenced)

The final constitution produced by the Loya Jirga provides for better political representation for women in Afghanistan than they have had in the past.

The document was amended to state explicitly that the term “citizen” in the phrase “The citizens of Afghanistan have equal rights and duties before the law” applies to both men and women, an important revision in a country where women have in the past been denied civic rights.

The approved constitution also requires that the Wolesi Jirga include two female representatives from each province, compared with one per province in the original draft. This means that a minimum of 64 of the lower house’s’ 250 members will be female. At just over 25 per cent, this is higher than in most Western democracies.

The final draft makes no mention of gender in the qualifications necessary to be president and, in places, makes it quite clear that in theory a woman can fill the role. Massouda Jalal, who stood for the presidency during the 2002 Emergency Loya Jirga, has said she intends to run again in the next round of presidential elections.

Besides allowing Afghan women greater political representation, it is hoped the new constitution will also safeguard them against a number of controversial traditional practices.

Article 54, which is primarily concerned with the family, says the state should strive to eliminate traditions which are contrary to Islam. This could be used to outlaw forced marriage and the practice of paying for brides. (See: Forced Marriage Ban Possible, Women Would Gain Constitutional Protections)

ETHNIC ISSUES

The rights and demands of Afghanistan’s constituent ethnic groups proved contentious throughout the Loya Jirga discussions.

Following a particularly bad period of stalemate which concluded with a walkout, Mujaddidi formed a working group – made up of three representatives from each province and the leaders of the ten Loya Jirga committees – which he hoped would help resolve some of the most controversial sticking points.

But the group’s discussions collapsed into a series of bitter shouting matches over a range of questions, including the language to be used for the national anthem and the suggestion that Pashtu should be given elevated status as Afghanistan’s “national language”. (See: Loya Jirga Falls into Disarray)

The original draft of the constitution said simply that the national anthem should be in Pashtu. But some delegates argued it should be sung in a variety of languages and a number even took part in the boycott on voting on January 1 because of the issue. As a compromise, it was eventually agreed that the anthem should be in Pashtu only - but would include the names of all the ethnic groups of Afghanistan and the Muslim phrase “Allahu Akbar” – “God is great” – associated in this context with ex-mujahedin groups.

Other delegates took part in the boycott on January 1 because they felt so strongly that Pashtu should be named the national language of Afghanistan, but that argument was eventually dropped after Pashtu delegates met on January 4 and their leaders persuaded the rank-and-file to withdraw the demand for the sake of compromise.

Besides the issue of a national language, arguments raged around the question of which should be named “official languages”, to be used in government communications. Where the original draft named Dari and Pashtu, it was eventually concluded that six further languages including Uzbek, widely spoken in the north, should also be official in the areas where they are most widely spoken.

The northern leader General Abdul Rashid Dostum was influential in promoting language rights for the Uzbeks – his own group - and the related Turkmen. President Karzai said that in return, Dostum had agreed to allow thousands of Pashtuns who have been displaced from their homes in the north over the past two years to return, and to free hundreds of Taleban prisoners in his hometown of Shiberghan. (See: Uzbeks Want Their Language Official, Afghans Approve a New Constitution, Compromises Anger Delegates)

Compiled by Mike Farquhar, an editorial intern with IWPR in London. The report is drawn from material gathered by the Loya Jirga reporting team in Kabul.