Experts Warn of Muscle-Flexing Behind Afghan Constitution

by Jim Lobe

Political power plays at the just-concluded assembly to write a new constitution for Afghanistan raise serious question about whether the country can hold free and fair elections as scheduled later this year, say rights groups and other experts.

While praising the inclusion of women's rights in the new charter, New York-based Human Rights Watch (HRW) said political intimidation, vote-buying and a lack of transparency characterized key parts of the three-week loya jirga, or grand assembly, which put the finishing touches on and approved the country's charter.

Also, a number of provisions in the document were sufficiently vague to raise concerns about how they would be enforced in practice, the group added.

"Human rights protections were put on paper," said John Sifton, HRW's researcher on Afghanistan. "But there were a lot of missed opportunities and complaints and corruption during the convention," he added in a statement.

Some of the same critiques were leveled by Anatol Lieven, a Central Asian specialist with the Washington-based Carnegie Endowment for International Peace.

In an article published by the Financial Times earlier this week, Lieven stressed that the final document was "not so much a constitution as an aspiration."

While the assembly was "fairly representative" of Afghanistan's diverse peoples and interests, he noted, it was "by no means fully democratic, in either its selection or its procedures."

Lieven described the meeting as a "top-down process," and stressed that the constitution would not have been ratified in the end "without arm-twisting by the U.S., the United Nations and the international community."

All of this bodes worrisome, both for the implementation of the constitution and of national elections that are scheduled for June, but which analysts are already suggesting might have to be put off until September, if not longer.

HRW noted that the just-concluded meeting made "significant achievements," particularly the guarantee inscribed in the constitution that women will hold a substantial number of seats in the country's bicameral National Assembly.

Approximately 25 percent of the seats in the lower house are reserved for women, while the charter requires the president to appoint additional women to the upper body, called the House of Elders.

In addition, one provision provides that men and women should be treated equally under the law, including the specifically enumerated political, civil, economic and social rights that are recognized by the constitution.

But according to HRW, the document lacks strong language ensuring that institutions created to uphold those rights are empowered to do so, while its failure to address the role of Islamic law and its relationship to human rights protections could be used by a conservative judiciary to implement interpretations of Islam that might run contrary to global human rights standards.

The constitution provided that no laws should contravene basic Islamic principles.

HRW said it was also concerned that the constitution fails to address accountability for serious human rights abuses that have taken place in the past.

The Afghan Independent Human Rights Commission (AIHRC), which was created by the December 2001 Bonn Agreement after the U.S.-led military campaign ousted the Taliban regime, might be able to delve into the question, but the new constitution gives it no mandate to do so.

HRW said it was especially concerned about the machinations by various factions before and during the meeting to influence the outcome, and added that the use of intimidation and bribery underlined fears that warlords and local factions continue to dominate Afghanistan's political evolution.

"A constitution cannot itself reduce the power of the warlords," said Sifton. "But an open political process in drafting it could have weakened their influence. Instead, the warlords flexed their muscles and proved they still hold a lot of power."

London-based Amnesty International (AI), which also observed the process, released a statement two days before the Jan. 4 ratification that echoed HRW's concerns.

"Dominance by strong political and armed factional leaders and the absence of the rule of law in many parts of the country contributes to an atmosphere of insecurity for delegates who wish to act independently of powerful political groups," it said.

"Some delegates fear for the safety of their families and for their own lives, especially after they return home at the end of the (loya jirga)."

Both HRW and Amnesty had documented numerous cases of death threats and corruption in the process that selected the delegates to the loya jirga, and U.N. officials told HRW that many of the delegates were proxies of local factional leaders.

The rights group said much of the substantive discussion took place between allies and ministers of President Hamid Karzai and various factional representatives behind closed doors. As a result, key provisions in the constitution were never the subject of serious debate.

Karzai emerged from the meeting having achieved his major goal – securing a strong presidential system. But what promises the government was forced to make to prevail is not yet clear.

The central government has relied virtually entirely on security and military support from the United States, its allies in Afghanistan and the NATO-led International Security Assistance Force (ISAF).

Except in a few locations around the country where US forces have deployed to provide security and some reconstruction assistance, Karzai's authority has not extended far beyond Kabul's municipal boundaries.

As a result, much of the country is in the hands of warlords and factional leaders, most of who identify with specific clans or ethnic minorities. A new constitution that provides for a strong presidency is therefore "almost surreal in its distance from the real distribution of power in Afghanistan," according to Carnegie's Lieven.

HRW called on the international community to provide better security for the country. It said expanding and extending ISAF into the countryside, as long called for by both the United Nations and relief groups, would signify the international community's commitment to the constitution.

Sifton said that would be critical in coming months if elections are to be held successfully. Taliban and allied forces have renewed their presence in the Pashtun-dominated eastern and southern parts of the country in a direct challenge to the central government's control.

Last week, the United Nation's former top Afghanistan expert and current European Union representative in Kabul, Francesc Vendrell, warned that a free and fair election could not be carried out if the current security situation persists.

January 9, 2004

Jim Lobe is Inter Press Service's correspondent in Washington, DC.

Copyright © 2004 Inter Press Service

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