Renewal and Reform for a Post-Karzai Afghanistan: A Critical Appraisal of the 2004 Constitution
With elections being held in May 2014 for a new president and in 2015 for National Assembly representatives, the opportunity exists then for amending the 2004 Afghan Constitution. The necessity exists for amendment from different perspectives; firstly because the experience of implementation over the past 10 years has highlighted some weaknesses requiring rectification, and secondly, the Taliban, a key player in the Afghan polity, rejects it as not being sufficiently Islamic. This is partly a consequence of the occupiers imposing their will during its original crafting. The excessive powers wielded by Karzai in the executive arm and the need to provide more inclusive representation in governance of such a multi-ethnic country suggest a parliamentarian system would have merits over the current presidential system. Facility is needed to ensure that any person the Afghan Human Rights Commission justly determines has committed or ordered crimes against humanity should be barred from running for any political office. Proposed election reforms would ensure a truly Independent Elections Commission, as well as synchronising expensive national and provincial elections so as to reduce election costs and security issues. To resolve current jurisdictional issues of the Supreme Court and the Independent Commission for Supervision of the Implementation of the Constitution regarding resolving constitutional issues, it is proposed that the former is provided these interpretative powers while the latter becomes a research institute, especially to enhance the understanding of what is required for Afghanistan to become an “Islamic” Republic. Specific recommendations are provided herein on what principles and features should be included in the Afghan constitution to characterise and develop it as an Islamic republic. Proposals for strengthening the role of Islamic Shariah include firstly, clarifying the role of ‘ahkam’ in the repugnancy clauses, sourcing rulings from other than the Hanafi madhhab, and expanding the applicability of the Shariah outside the courts to which it is currently restricted by the Constitution. A policy recommendation is made for the holding of a Constitutional Loya Jirga to deliberate upon various amendment proposals and the adoption of new clauses as an exercise in peace-building and stabilisation, especially involving the Taliban who would need to be fairly represented, protected, and have their views heard and considered in the constitutional amendment process.