When delegates to Afghanistan’s Constitutional Loya Jirga assemble in Kabul on 13 December 2003, they will begin debating and ultimately deciding upon a draft document that is intended to establish a strong presidency while accommodating the other dominant figures at the country’s centre. It is a constitution, however, that for the most part would fail to provide meaningful democratic governance, including power-sharing, a system of checks and balances, or mechanisms for increasing the representation of ethnic, regional and other minority groups. The manner in which the draft has been prepared and publicised, as well as its content, raise serious questions about whether it can become the first constitution in Afghanistan’s history to command genuinely deep popular support and, therefore, contribute to national stability.

Delays in release of the draft, made public only on 3 November 2003, meant that the distribution of printed copies and public education efforts started in earnest less than a month before the convening of the national conference that is meant to adopt it as the country’s new fundamental law. It is believed that the document reflects the wishes of President Karzai and that its concentration of powers in the president’s hands is strongly supported by the U.S. Nevertheless, many Afghans who have studied the draft, including political figures, lawyers and participants in the drafting process from varied ethnic and regional backgrounds with whom ICG has discussed the text, concur on the need for substantive revisions that would reduce presidential powers, invigorate an anaemic parliament and provincial councils, and establish a constitutional court. Conservative Islamic groups are unhappy that the draft did not institutionalise Islamic law unambiguously.

Many Afghans and other observers believe that the major decisions have already been taken behind the scenes, and President Karzai has expressed the hope that the Constitutional Loya Jirga will conclude its business within a week to ten days. There are indications, however, that delegates may wish to make use of their prerogative to change the document, and UN Special Representative Lakhdar Brahimi has predicted a “difficult” debate.^[fn]“Karzai Seeks Quick Accord on Afghan Constitution”, The New York Times (Reuters), 10 December 2003.Hide Footnote

ICG’s June 2003 report on Afghanistan’s Flawed Constitutional Process^[fn]See ICG Asia Report N°56, Afghanistan’s Flawed Constitutional Process, 12 June 2003.Hide Footnote  covered the period between the convening of the Constitutional Drafting Commission in November 2002 and the start of the public consultation process under the auspices of the larger Constitutional Review Commission. This paper examines the structures proposed in the final draft presented to the Constitutional Loya Jirga by the Review Commission and analyses the differences between that document and what originally emerged from the Drafting Commission. It pays particular attention to the capacity of the proposed constitution to ensure inclusive, democratic governance and protect human rights – issues that will be central to its public acceptance.

Kabul/Brussels, 12 December 2003