A.1 Afghanistan [2004]

After twenty-three years of civil strife, the fall of the Taliban presented the opportunity to forge a new consensus among Afghans to reconstruct the state. One of the first steps was the 2001 Bonn conference, held under the auspices of the United Nations, which brought together a few political factions to agree upon the political transition. Although the Bonn conference left out some key stakeholders, the political transition gradually became more representative. The international community had high levels of interest and influence in shaping the process and establishing a democratic state, in part because of Afghanistan’s perceived centrality to the “war on terror.”

The Bonn Agreement of December 5, 2001, provided that the Afghan Transitional Administration establish a constitutional commission to prepare a draft constitution that would be debated and adopted by a Constitutional Loya Jirga. The Constitutional Loya Jirga was to be convened within eighteen months of the establishment of the Afghan Transitional Administration. The Bonn Agreement did not set a deadline for when the constitution should be adopted, did not provide for how the members of the constitutional bodies should be elected or selected, or discuss the role of the public. The Afghan Transitional Administration, led by President Karzai and his cabinet, added a constitutional body to the structure of the process. In October 2002 a nine-member drafting committee was set up to prepare a draft of the constitution, with a secretariat to assist its work. Six months into the eighteen-month time frame for the process, the committee gave President Karzai a draft that largely followed the 1964 constitution. The nine-member committee’s work was primarily conducted behind closed doors. Civil society and others were suspicious about the process and felt excluded. Partly in response to this problem, a more representative thirty-two-member constitutional commission was mandated to carry out civic education and public consultation in each province of Afghanistan and among the diaspora.

The secretariat was expanded to enable it to assist with these tasks, and it created additional departments such as logistics, information and technology, press relations, civic education, public consultation, research and data processing, and protocol. It established offices in all eight regions of the country and in Iran and Pakistan. The secretariat partnered with civil society, which linked with approximately sixteen hundred local leaders to raise awareness about the process and key constitutional issues in all of the provinces. The mass media were also used, including radio and print. Despite the nationwide reach of the campaign, the short time frame limited its impact.

From June 8 to July 20, 2003, commissioners formed teams of three (two men and one woman) and traveled to each Afghani region, Iran, and Pakistan to hold public consultation meetings with key stakeholders: women, religious leaders, farmers, and youth, as well as village elders. More than fifteen thousand citizens gave oral suggestions and approximately a hundred thousand views were gathered through questionnaires. However, the commission was not independent, and President Karzai and influential members of his cabinet decided the content of the final draft without considering the views of the public. Unlike in many constitution-making processes, the secretariat remained operational to conduct a civic education campaign for three months on the contents of the adopted constitution.

The Constitutional Loya Jirga slightly revised the draft after negotiations among key factions, previously excluded groups, and the international community—primarily the United Nations and the United States. The 502-member body was composed of:

  • 52 experts appointed by the president, 25 of whom were to be women;
  • 344 delegates elected by the approximately 18,000 former Emergency Loya Jirga representatives; and
  • 24 elected refugees from Iran and Pakistan, 64 women elected by women’s groups (2 women per province), 9 elected Kochis (nomadic tribes), 6 elected internally displaced persons from three provinces; and 3 elected Hindus and Sikhs.

This combination of electoral processes and selection processes led to a fairly representative body, and the quotas for women, minorities, and marginalized groups, such as internally displaced persons, led to the advancement of their rights in the final draft of the constitution (through the backing of the United States and the United Nations). Although the rules of procedure were drafted to try to keep influential warlords out, a few were elected and they exerted significant influence in the Constitutional Loya Jirga, at times silencing opposing views.

Intense negotiations, in particular among powerful warlords, took place in private.

The United States ambassador to Afghanistan and the United Nations put forward constitutional positions that were non-negotiable and these were followed by the Constitutional Loya Jirga. They also used their positions to push for members to reach agreement on a draft. On January 4, 2004, nearly all of the members of the Constitutional Loya Jirga stood to approve the draft constitution. President Karzai signed and promulgated it on January 26, 2004.