The Peace Process and Afghanistan’s Uncertain Constitutional Future

As the peace process in Afghanistan enters a new phase, proposals for a transitional government dominate the political landscape. Most anticipate a collegial, power-sharing government and envisage significant constitutional revisions: but the plans differ on whether the 2004 Constitution should be merely amended, or serve as a placeholder or template for an entirely new constitution. It remains to be seen how the parties will reconcile competing constitutional visions of the state’s central credo and relationship with Islam – writes Shamshad Pasarlay

The Afghan peace process is set to enter a critical new phase. Foreign troops are expected to completely withdraw by September 11, 2021. A consequential international peace summit is scheduled (without a date yet) in Istanbul, Turkey, to re-energize the enervating process. The summit was initially scheduled for April 16, but Turkey postponed it to an unspecified time because the Taliban refused to participate on that date. The Taliban have apparently clarified that they would not partake in the Istanbul summit until their 7,000 prisoners are released (or this issue is included in the agenda for talks) and the group’s leaders are removed from a UN blacklist.

Within Afghanistan, several proposals for a transitional government dominate the political landscape. President Ashraf Ghani, head of the High Council for National Reconciliation (HCNR) Chairman Abdullah Abdullah, and political parties – chiefly the Hezb-i Islami (Islamic Party) and the Jamiat-i Islami (Islamic Society) – have all engaged in intensive discussions to carve out a possible path forward. Political settlements of most conflicts commonly effectuate constitutional change. Hence, negotiating an end to conflict and making/unmaking constitutions are inter-related and usually proceed in tandem. This trend is clearly visible in the Afghan peace process. Most transitional government proposals anticipate collegial, power-sharing governments and envisage significant constitutional revisions – changes that could potentially overhaul the basic structure of the Afghan state defined in the 2004 Constitution. The Constitution has thus become one of the key focal points in the peace process, and constitutional revisions seem inevitable, but how these changes should proceed remains uncertain and can be a recipe for political crises and deepened conflict if rushed and poorly designed.

Constitutional Issues in the Afghan Peace Process

Since the start of the Doha Process in 2018, heavy clouds have loomed over Afghanistan’s constitutional order. Afghanistan’s current Constitution was adopted after the fall of the Taliban in late 2001. The document has survived since then, emerging as one of the country’s longest-lived constitutions. Although its performance has been mixed, most political elites view the Constitution as the ‘crown jewel’ of the post-Taliban political transition. Many Afghans, too, support the basic structure of the document and favor to preserve it for a post-peace political ordering. The Afghan government is open to considering amendments to the Constitution to accommodate the Taliban’s views and their constitutional imagination.

The Taliban demand a new constitution – one that should be ‘drafted by Islamic scholars’.

The Taliban, by contrast, reject the Constitution and the system of governance established therein. This is unsurprising since the group was not invited to participate in the 2001–2004 process through which the Constitution was drafted. The Taliban’s main charges against the Constitution are twofold: first, the Constitution, in the group’s view, does not fully conform to Islam; and second, the Constitution was drafted, debated and promulgated under conditions that the Taliban view as ‘foreign occupation’ (for discussion of why the Taliban are wrong in their perception of the Constitution, see here). The Taliban thereby demand a new constitution – one that should be ‘drafted by Islamic scholars’ that the group hopes to be involved in appointing. Notably, constitutional revisions envisioned by the Taliban may entirely change the underlying foundations of the Afghan state.

Hence, the process through which constitutional changes should be drafted, passed, and implemented is a major point of contention. The 2004 Constitution’s amendment rules envisage a process that only includes existing governing institutions. Under the Constitution, a commission formed with representatives from the executive, legislative and judicial branches drafts amendments. A constitutional Loya Jirga – Afghanistan’s constitutional convention comprised of members from the parliament and heads of provincial and district councils – will then approve amendments by a two-thirds majority. Amendments will become effective after the president’s approval. Unless an arrangement is made to include the Taliban in this process, it is hard to imagine the Taliban agreeing to revisit the country’s constitutional order through amendments to the Constitution. This seems to be one reason why the Taliban prefer to draft an entirely new constitution.  

Assuming that the parties agree on the process question, debate on substance is even more perplexing. There is deep tension between the 2004 Constitution and the Taliban’s constitutional vision, and this could pose acute challenges for constitutional reform ahead.

The Taliban’s Constitutional Vision: Hints from the 2005 and 2020 Versions of the Charter

On taking power, the Taliban did not initially adopt a formal constitution, arguing that the Quran and the Sunna were all the constitution they needed. However, as the group’s writ expanded in the late 1990s, Taliban leaders sensed a need for bureaucratizing the state and adopting a constitution. In June 1998, Taliban leader, Mullah Omar, issued a decree and convened a council of about 500 leading ulama (clerics) to draft a constitution for the expanding Taliban government. The Council prepared a draft within two months, but the constitution’s adoption only came in 2005, four years after the Taliban were ousted from power. There is little information about why the document was adopted four years after the group’s ouster, but it seems that the Taliban took that time to reassemble, nurse their wounds and adopt their constitution as a direct response to the Afghan government’s 2004 Constitution.

The Taliban’s 2005 Charter (constitution) painted an ambiguous picture of the group’s constitutional vision. It created an autocratic ‘Islamic Emirate,’ headed by an absolutist Amir. It provided no guidance as to how the Amir would be elected and for how long he would serve. The document defined an ‘Islamic Council’ to serve as the legislative body, whose members were to be appointed by the Amir only. The 2005 Charter incorporated Islam and the Hanafi fiqh (jurisprudence) in all aspects of governance including basic rights, foreign policy, the judiciary and the economy. Chiefly, the document stated that the Islamic sharia shall be the only source of legislation and that all laws and regulations shall not contradict the ‘principles of the sharia.’ No institution was envisioned within the Charter to ensure state laws would not contradict the sharia. However, in early 2001 the Taliban adopted a law that created a ‘Constitutional Council’ to exercise this function.

Over the past two decades, the Taliban have remained remarkably ambiguous when it comes to a constitution and an Islamic political order. In 2020, another version of the Taliban Charter surfaced in some media outlets. Although it was disavowed by the group’s spokesperson on Twitter, the document closely resembles the 2005 Charter and some basic laws the Taliban adopted when they ruled Afghanistan. Additionally, this latest document contained details on those aspects of governance that the 2005 Charter left ambiguous. The 2020 document retains the autocratic Islamic emirate and provides that the Amir is to be elected by ahl hal wa aqd (council of the wise and learned ones), or, alternatively, an Amir may be designated by a former Amir.

The 2020 Charter retains almost all of the Islamic law clauses of the 2005 Charter. It further creates a powerful Council of 50 ulama and authorizes it to examine the ‘entire policies and laws of the Islamic emirate with the teachings of the sharia.’ This Council has the sole right to invalidate laws that do not accord with the requirements of the sharia. Importantly, the Council of Ulama exercises, among others, the powers of the 2001 Constitutional Council – ensuring state laws comply with the teachings of the sharia.

The Taliban constitutional vision seems to be in deep tension with the 2004 Constitution.

The Taliban constitutional vision thus seems to be in deep tension with the 2004 Constitution. The latter creates an ‘Islamic republic,’ embraces democratic elections, and protects liberal rights. It also authorizes institutions that are staffed with lawyers and religious experts – arguably those trained in modernist methods of Islamic legal reasoning – to realize Islamic law clauses. The Taliban charters rather present a version of governance by traditional ulama who are conservative in their approach to religion and exercise a veto on state laws and policies. Any constitutional process will have to reconcile these opposing visions.

The Prospects for a Transitional Power-Sharing Government

While the Afghan government and its international partners map out the future of the peace process, political elites within Afghanistan are navigating through dense traffic of ‘peace plans.’ Nearly all postulate transitional power-sharing governments and anticipate constitutional reform. For instance, a Washington-proposed roadmap provides that ‘a transitional peace government shall be established’ and govern until a permanent administration is formed. This transitional government will have executive, legislative and judicial branches, and it also includes a ‘High Council for Islamic Jurisprudence’ that will advise the Supreme Court in matters of constitutional interpretation – arguably the constitution’s Islamic provisions. Parties to the peace agreement will equally appoint members of the peace government and maintain an inclusive administration as they move forward.

Within Afghanistan, the HCNR has put forward its own roadmap, which includes a transitional government. The HCNR’s proposal builds on several peace plans political parties have recently publicized (for a list of these plans, see here). Executive power is divided between a president and a prime minister, each of which has four deputies. Parties to a peace agreement will share legislative and judicial power. The HCNR’s proposal partly includes President Ghani’s recommendation that early elections should be held to elect a ‘government of peace’ instead of a transitional government. However, there seems to be a broader consensus within the political circles that a transitional political administration may be the only realistic way forward.

The circulating peace plans propose different forms of constitutional reform: using the 2004 Constitution as a placeholder, template, or retained with amendments.

Constitutional reform and how it shall proceed are other important parts of these peace plans. The Washington plan envisages a constitutional commission that will draft a new constitution. It provides that the 2004 Constitution will remain in force until a new one is adopted, and it ‘will be the initial template from which the future [c]onstitution will be prepared.’ The HCNR’s proposal, by contrast, provides that the current Constitution shall be preserved but amendments shall be made to accommodate Taliban views. Details on which of these two routes may be taken and how the process might actually proceed remain uncertain.

The transitional governments are simply power-sharing arrangements between parties to a peace agreement, chiefly the Taliban and the Afghan government. However, it must be noted that there are other stakeholders whose consent may be critical to a stable transitional period. For instance, representatives from the Hezb-i Islami Party opted not to be part of the government negotiation team that travelled to Doha to engage in peace talks with the Taliban in September 2020. The Party’s leader, Gulbuddin Hekmatyar, recently suggested that the best way forward in the peace process is to establish a transitional government – one that could potentially accord his party political power. An influential faction within the Jamiat-i Islami Party is in a similar position.

These transitional government proposals are different in structure and composition, but the plans that are inclusive, ensuring the participation of all relevant parties, and divide power equally among the constituent parties may be received positively by the country’s political elites. The Washington plan and the HCNR proposal fall in this category. The Taliban have not yet commented on any of these proposals, but the group does support some type of transitional power-sharing arrangements. Afghanistan’s governance experience after the fall of the Taliban tells us that broad, inclusive and power-sharing transitional government may have the best chance to inaugurate a stable transitional era. In short, it is critical to design mechanisms that create incentives for all affected parties to preserve the basic building blocks of a transitional administration. It is similarly important to involve these stakeholders in the constitutional process that the transitional government is expected to oversee.

Concluding Remarks: The Possible Path Ahead

The ideological contestation of the Afghan state appears to be heading towards the constitutional arena. Although it is a fierce battle, it is possible to manage it in a way that does not exacerbate political crisis. The Taliban does not represent an entirely revolutionary constitutional vision. In fact, the group’s constitutional imagination has deep roots in Afghan constitutional tradition and represents continuity rather than complete rupture.

Afghanistan is no stranger to constitution-making during political upheaval. However, constitution-making failed in Afghanistan when the process was exclusionary and focused on the ideal type of state championed by the group initiating the process. For example, constitutional processes foundered during the civil war of the 1990s and pushed the country deeper into political violence for decades afterwards. That process excluded certain powerful groups and was destined to entrench the ideal nature of the Afghan state defended by one group only. It did not involve all possible warring factions in order to sustain a constitutional order. The result was boycotting of the process by factions who were excluded, choosing, instead, to contest the state violently.

There is a lesson to be learned from the country’s past: an unrushed, inclusive process and attention to common ground may produce a viable compromise.

There is thus a lesson to be learned from the country’s past: an unrushed, inclusive process and attention to common grounds rather than ideal preferences might help produce a viable compromise. This approach may not produce any group’s ideal constitution; it may even produce an imperfect constitution, but it will be a constitution that may give all groups sufficient incentives to abide by its rules because they would have drafted those rules themselves. The result may be a constitutional politics in which most groups have a stake to preserve its core elements.

Shamshad Pasarlay is an independent researcher and former Assistant Professor at the Herat University School of Law and Political Science, Afghanistan.