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Transition Studies Review (2006) 13 (1): 155–171 DOI 10.


Transition Studies Review
Ó Springer-Verlag 2006 Printed in Austria

Afghanistan – The End of the Bonn Process
Antonella Deledda1,2
1 2

Italian Justice Office, Kabul, Afghanistan Libera Università Internazionale degli Studi Sociali, Rome, Italy

Abstract. The Afghanistan of the new millennium represents a significant test of the latest attempts to allow the coexistence of Western law principles and Islamic law – an issue that has been accompanying the East–West relations since the first colonial relations. The meaning of the path followed by Afghanistan is fully and clearly outlined when we consider that from 1996 to 2001 the Talibans turned this country into an emblem of the strict enforcement of the shari’a and of a radical contrast to Western countries. The presence of Osama bin Laden turned Afghanistan into the base of a global network of Islamic extremism, which interpreted religion as a motive and a justification for the most heinous actions, aiming at countering global powers. After 11 September 2001, and the subsequent rapid repulse of the Talibans, the international community undertook to support the reconstruction of a country devastated by 23 years of war, immediately giving back the country sovereignty to the representatives of the Afghan people. The still undergoing process of reconstruction of democratic state structures was not therefore entirely ‘‘imposed’’ from outside of Afghanistan; it was rather mediated by a national political class that is acquiring increasing legitimacy through the carrying out of democratic elections. A reconstruction process of Afghanistan on a sound basis cannot but take into consideration the history of a population that always and successfully opposed foreign rules, and that twice in the 20th century, in 1929 and in 1973, rejected the state visions inspired to the experiences of other countries. The history of Afghanistan is strewn with moments of confrontation and fight against ‘‘modernity’’, in which ethnic and tribal dynamics always prevailed. These dynamics, although fragmented, were marked by a strong national identity, also based on the religious bond. However, it must be recalled that the constitution passed on January 2004, in compliance with the guidelines provided for in the Bonn Agreement of December 2001, represents the seventh constitutional charter Afghanistan has adopted over the last 80 years (1923, 1931, 1964, 1977, 1987 and 1990). The country therefore owns a remarkable judicial inheritance that also includes a significant tradition of protection of rights.

The constitutional process
In December 2001, only two months after the beginning of the war levied by an international coalition against the Taliban regime, the main leaders of the Afghan opposition and diaspora met in Bonn under the auspices of the United



Nations. On that occasion, an agreement was made to endow the country with a transitional government, tracing at the same time a path leading to the restoration of institutional structures. The Bonn Agreement,1 in fact, provided for the immediate transfer of powers and of the Afghan sovereignty to an ad interim authority (Afghan Interim Authority AIA), established on that same occasion, and made up as follows: an ad interim Administration governed by a President; a special independent Commission envisaging, within six months, the summoning of an emergency Loya Jirga (Grand Assembly); and a Supreme Court. Hamid Karzai was appointed as the President of the Afghan ad interim authority on 22 December 2001. The emergency Loya Jirga was entrusted with the task of electing the president of the transitional authority, appointed to lead the country to the political and presidential elections to be held within two years, which would allow the expression of a fully representative government. The emergency Loya Jirga summoned on June 2002 and, by means of a secret ballot, confirmed Karzai as President of the Afghan Transitional Islamic State. Furthermore, the Bonn Agreement defined the legal framework for the country governed by the ad interim authority, acting as a sort of transitional constitution. In fact, it revived the constitution of 1964, exception made for the form of state (which was monarchical in 1964) and of government, since it did not conflict with the provisions of the agreement itself. It confirmed the current legislation, within the limits of the compliance with the Bonn Agreement, with the international treaties signed by Afghanistan,2 besides the constitution of 1964. By means of the Bonn Agreement, Afghanistan took the republican form, also thanks to the explicit declaration of intent by the old King Zahir Shah, who had been living in exile in Rome since 1973. Besides the system described above, the agreement outlined the steps of a new constitutional process and fixed its end within eighteen months after the establishment of the transitional authority. The United Nations was entrusted with the task of providing assistance to this path. The agreement also requested the United Nations Security Council to authorize the deployment to Afghanistan of a United Nations mandated force, charged with assisting in the maintenance of security for Kabul and its surrounding areas, and to be progressively expanded to other areas. At the end of December 2003, in compliance with the schedule set by the Bonn Agreement, the constitutional Loya Jirga was elected by a group of Electors and entrusted with the task of discussing the final draft of the constitution. The debate in this framework was more heated and longer than expected. Substantial amendments were made to the initial draft, mainly aiming at enhancing the role of Islam, at imposing higher controls to the power of the president, and at giving a more significant recognition to the ethnic groups.
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At the end of this challenging process, the Loya Jirga passed the new Constitution of Afghanistan on 4 January 2004, and it was subsequently enacted by the President on 25 January 2004. The objective of the long constitutional process was the achievement of a fundamental charter able to reflect the values of the population, shared by all the different components of the country. If this appears as a fundamental requirement for the constitution of any country, it is even truer for Afghanistan, in consideration of its historical-juridical situation and of the long period of war and ravages of its recent past. This complex task was accompanied by the need to meet the expectations of the international community, on whose financial and military support Afghanistan is still largely dependent nowadays. At first, the ‘‘Bonn process’’ and thence the new constitution defined a transitional period with a view to the completion of democratic institutions. A first fundamental step of this path was marked by the presidential elections made in October 2004, which confirmed Hamid Karzai as country president, with a 54.4 % majority. Conversely to what was provided for in the transitional regulations of the Constitution,3 it was not possible to make legislative elections at the same time as the presidential ones in October 2004, since the electoral law, the constituencies, and a census criterion agreed by the ethnic groups4 were not defined. Only one year later, on 18 September 2005, the Afghan population was called to elect their representatives to the Wolesi Jirga and to the provincial councils. The latter will contribute to the formation of Meshrano Jirga through the election of one third of its members. Another third of members will be appointed by the president, whereas the last third will be elected by district councils, whose elections are still postponed due to the lack of an agreement on the territorial definition of districts. Parliamentary and provincial elections took place with the electoral system defined as ‘‘single nontransferable vote system’’ (SNTV), namely, with individual candidacies without list vote. Each of the 69 constituencies identified on a provincial basis was assigned seats for the House of Representatives in proportion to the population, and the candidates receiving the highest number of voting preferences were elected. Two women are elected, by right, in each province, and ten seats, out of the overall 249, are destined to the Kuchi, a nomadic population. With the election of the parliament, then, the transitional period outlined by the constitution, besides the Bonn process, comes to an end. The three powers of the state (legislative, executive and judicial) are now in place with their respective competences and field of action defined by the constitution. A new conference – the so-called post-Bonn Conference – is scheduled for the beginning of 2006 in London, during which the Afghan authorities and the
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international partners will outline the coordinates of a new phase in the state building.

The new Islamic Republic
The drafting of the new Afghan constitution resumes the model of 1964, on the basis of the provisions of the Bonn Agreement, with some important amendments, including those relating to the form of state and government: from a constitutional monarchy to a presidential Islamic republic.5 The strong religious connotation characterising the text, starting from the name of the state, is on the other hand balanced by the presence of a series of institutions and procedures that are typical of the liberal-democratic tradition. The preamble, in fact, already shows the constituent’s intention to mediate between the traditional institutions of Afghanistan and the concerns raised among the international public opinion by the obscurantist enforcement of the religious law by the Talibans, besides the impact that regime had on the safety of the whole planet. Despite of mediations, some outstanding international voices6 noticed that the gap between the text adopted and the standards shared by the Western community is still big. Maybe, however, in consideration of the past Afghan constitutional experiences, the main challenge is represented by the ability of the new constitution to reflect the expectations and the values of the Afghan people and to guarantee the country governance. Furthermore, in consideration of the fact that most of the constitutional provisions refer their enforcement to the ordinary law, the relation between formal constitution and material constitution shall be assessed in a more advanced stage of development of the juridical order of the country that is presently taking place.

Relation with religion
The subject of the role of religion – and of the Islamic law or shari’a in particular – in the creation of the Afghan state has represented one of the most debated elements in the framework of the constitutional process. The recent domination of the country by a group of pashtun inspired by a strict Islamic fundamentalism, the Talibans, was based on the call to Islam as a salvific element compared to the previous bloody war between factions, which were also based on religious grounds. As a matter of fact, the concept of religiosity imposed by the Talibans inevitably included the traditionalist background of the country that was often mixed and merged with the religious element, although having little to do with it. However, it was improbable that, with the advent of the transitional period outlined by the Bonn Agreement, the country succeeded in completely freeing itself from the
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invocation – although merely demagogical – to an Islam that more than anything else succeeded in expressing the feeling of national unity. The horror raised all over the world by the dramatic events of September 11, which were also based on religious foundations, and the close association between those facts and the Afghanistan of the Talibans, made the fact intolerable to the international public opinion that the new Afghanistan intended to still define itself from a religious point of view. In fact, the draft constitution submitted by the constitutional commission to the Loya Jirga that summoned in December 2003 proposed a substantially secular state, with merely formal references to religion. This approach, however, did not correspond to popular feelings, especially the way in which the latter was routed by its representatives to institutions, which were mostly coming from the war events where religion played a predominant role. The constitution, especially in the draft discussed by the Loya Jirga, proposed an attempt to mediate between these difficult points of view. For this reason, if the several references to the compliance with Islam, and the adoption of the hegira calendar, show no doubts on the will to include the religious tradition in the text, similarly pressing and frequent are the references to the Charter of the United Nations, to the international treaties and standards. Significant is also the choice, similar to the one of the 1964 text, based on which national sovereignty is vested in the nation and not in God, differently from the constitutions of some other Islamic countries.7 And still, if article 2 stipulates that Islam is considered as the official religion, immediately after it is ruled the right to profess other religions and to celebrate the relevant rites, although within the limits provided for by the law. Among the several freedoms ruled by the constitution, there is also the freedom to establish political parties (art. 35), but if on the one hand it is specified that their statutes shall not be contrary to the religious principles, on the other hand, any parties established on ethnical, religious, linguistic and territorial bases are forbidden. However, one of the amendments made by the Loya Jirga to the text submitted to it moved the balance of power with reference to the role of the Islamic law. More precisely, the control over the legitimacy of laws, bestowed to the Supreme Court, is referred to the principles of Islam and not anymore to the constitution as the draft of the constitutional Commission proposed. Article 3, which rules the compliance of all laws with the principles of the sacred religion of Islam, becomes the key to interpreting most of the constitutional rules, de facto considering shari’a, although never mentioning it, as the primary source of law. On this specific aspect, the Constitution of 2004 makes a step back compared to the Constitution of 1964, which considered shari’a as a subsidiary source of law. The Supreme Court, whose members are temporarily appointed by the president, will be reconsidered and approved by the newly elected parliament.
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They will then play a fundamental and presently unpredictable role, if we consider the lack of secular jurists in the country.

The constitution of powers Presidentialism and the system of check and balance
The subject of balance between the powers of the state has represented one of the most controversial topics during the constitutional process between the establishment and its international partners, on the one side, and some of the main ethnic groups, on the other side. After a long debate on the form of government – parliamentary, semipresidential or presidential –, pure presidentialism was finally opted for, believing that a strong central power would favour the political, economic and social reorganisation of a heavily broken up country. The constitution adopted on January 2004 provides for a president directly elected by the people, acting as the chief of the executive power, who among other things appoints the ministers, the judges of the Supreme Court, and the high dignitaries of the state, is the commander of the armed forces, and appoints one third of the members of the Senate (art. 64 Constitution). As a counterweight to this decision, the ethnical components that feared an excessive concentration of powers in the hands of the representative of a single ethnic group, succeeded however in leading the Loya Jirga to approve some important amendments to the initial draft, such as the increase from one to two vice-presidents and a higher power of parliament in government decisions. Moreover, a series of provisions were added, aiming at turning Afghanistan into a multiethnic country, with a system characterised of balance of powers and a system of crossed checks.

The legislative power
The powers of the president are counterbalanced by a bicameral parliament that the constitution defines, in art. 81, as the ‘‘highest legislative power, an expression of the will of people, and representing the whole Nation’’. This concept is reaffirmed by art. 159 of the constitution, which provides for the end of the transitional period of the country only in the moment of inauguration of the National Assembly. This inauguration is being held on 19 December, after the results of the poll of 18 September were officially announced on 13 November. Beside a branch of parliament elected through Western criteria (Wolesi Jirga), there is a House of Elders (Meshrano Jirga), partly elected by the provincial and district councils, and partly appointed by the president. The summoning of the Loya Jirga, or Grand Assembly, is also provided for,
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in its capacity as the highest representative expression of the Afghan people, for most relevant events such as the changes to the constitution and the impeachment of the president. This assembly was traditionally made up of the older representatives of the different tribes, whereas nowadays it is made up of the members of parliament and the presidents of provincial and district councils. The legislative power has been temporarily vested in the government under art. 160 of the constitution, whereas the subsequent art. 161 states that ‘‘the decrees promulgated at the beginning of the transitional period will be subjected to the reading of the National Assembly during its first session’’. To the purposes of the weight that the National Assembly will be able to obtain within the Afghan institutional system, some concern is raised by the norm provided for in art. 79 of the constitution. That norm stipulates that the law decrees enacted by the government must be turned into law within 30 days by the National Assembly. If this rule is to be strictly enforced, together with the provisions of art. 161, the new National Assembly would find itself in the position of turning into law in a very short time more than 100 decrees adopted by the government during the transitional period. This concern is intensified by the inevitable lack of preparation of the young institution, both from a political and a bureaucratic point of view, in facing the complex legislative power. Against this background, it is too early to understand whether the National Assembly will succeed in playing the high role vested in it by the constitution, representing the heterogeneous national interests, counterbalancing at the same time the preponderant role given to the president by the constitution.

The judiciary
In the process of state construction, the judiciary8 presently looks like the slowest one to be formed, due to a series of factors. First of all, and maybe more than in other sectors, a burden is represented by the disappearance of the once flourishing class of intellectuals, due to the war, to the following emigration, and to the decimation made with systematic determination by the most obscurantist forces involved in the several wars of the last decades. The inheritance of juridical experts available at the beginning of the reconstruction was mainly made up of jurists of the Islamic school, educated in the shari’a schools, or in the Pakistani madrase often marked by an intransigent deobandist view that expressed itself through the regime of Talibans. There were then the youngsters trained in Western universities, however totally uninformed about the local situation. More generally, Afghan institutions presently seem to be caught in the contradiction, intrinsic in the constitution, between a secular state sharing international principles and the explicit reference provided for in art. 3, based
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on which ‘‘no laws can be contrary to the principles and provisions of the sacred religion of Islam’’. The control over the constitutional legitimacy of laws, decrees and international treaties is vested by art. 121 in the Supreme Court, a body that ended up reassembling the functions that in other codes were vested in the magistrates’ governing council, the constitutional court and the court of cassation. Until the appointment of the nine judges of the court is ratified by the Wolesi Jirga, under art. 117, the President of the Republic is entrusted with the making up of the court; for the time being, he does not seem to be able to impose a secular composition of it. The present members, the president first of all, have on the contrary a religious view of law that impacts on the secular view of an important part of the new constitution. If this is the situation of the heads of the judiciary, the situation in provincial and district courts is even more dramatic, since they firstly lack suitable structures for the fulfilment of their functions, as well as access to legislation, ability to keep records, and basic training of judges. Beside the central and peripheral structure of formal justice, there is a widespread custom in the rural areas of the country to resort to informal mechanisms for resolving controversies managed by jirga and shura of tribal communities, with very little interaction with the formal justice. Local jirga represent the traditional bodies in charge of governing the communities from a social and political point of view, besides settling disputes through the enforcement of customary practices. Their composition guarantees a certain degree of democratic nature, envisaging the participation of the elders elected by the community. With the advent of the Talibans, customary practices were banned, and a very conservative version of shari’a was imposed. Contemporarily, the jirga with a pashtun tradition turned into shura, with an Arab tradition, and the mullah of the village were appointed as their leaders. Against this background, an effort by the international community is taking place in order to improve the working standards of formal and informal structures of justice, and to train the operators to the new constitutional and legislative norms of the country, waiting for the access to formal justice to be guaranteed to all citizens. Furthermore, the justice sector would need to be given high priority by the government to guarantee the restoration of the principle of the rule of law. However, this shows some delays since many people fear that an operational judiciary might deal with the issue of ‘‘transitional justice’’. Starting from the Nuremberg trial, this idea came out in a large number of countries emerging from bloody and fratricidal wars, through the establishment of mechanisms allowing the identification of responsibilities and the punishment of the guilty, therefore laying the basis for a national reconciliation. It is enough to recall the case of the Court settling the crimes made in former Yugoslavia, established under the aegis of the UN, whose experience preceded the
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creation of a universal judicial tool aiming at prosecuting the crimes against humanity – the International Criminal Court. If this passage is needed to overcome the aftermaths of this type of wars, and it is fundamental for a full return to normality, it however needs suitable conditions for its fulfilment. The prevailing opinion among the actors of the international community committed in this sector is that in Afghanistan it is still premature to refer to ‘‘transitional justice’’, especially in consideration of the fact that several protagonists of the war are holding key posts both at a territorial and a central government level, and that a situation of conflict still exists, in which the remaining Taliban forces are allied with the army of the warlord Hekmatiar and other insurrectional groups. Despite such a situation, a process of reconciliation has been put in motion by the Independent Human Right Commission which in 2005 published ‘‘A Call for Justice’’, a report on past human rights abuse and recommendation for reconciliation. The Commission also produced a Plan of Action which was then discussed at the Conference on Peace, Justice and Reconciliation, held in The Hague, on 6–7 June 2005, and finally approved, in a modified version, by the Afghan Government on 12 December 2005. The Plan of Action does not foresee an immediate prosecution of people involved in past abuses, but provides for the development of means to address the issue in the future. However, although the day of reckoning is far from coming, this cannot represent an obstacle on the way of reconstruction of the judiciary that, in its central and peripheral components, is called to ensure all the citizens the observance of the rights provided for in the constitution.

Relation between centre and periphery
The subject of relation between centre and periphery in Afghanistan deeply suffers from the history of the country, characterised by its being at the same time united and fragmented. In particular, the path that led Afghanistan to the construction of a centralised state has lived and still lives with a strongly decentralised traditional society. In recent history, if the Talibans were able to re-centralise the power thanks to the ethnic rule, the international invasion at the end of 2001 gave new momentum to the warlords and to their territorial powers. The choice of the form of presidential government ruled by the Constitution of 2004 aimed to assert both the aspect of national unity and the return to a strong centralisation, in the attempt to counter the presence of ethnical powers, deeply rooted throughout the territory. Title VIII of the constitution, articles 136–142, regarding public administration, outlines a model based on the principle of centralisation, counterweighted by the devolution of powers to the periphery. The establishment of provincial and district councils elected by the people is inspired to the principle of
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bringing institutions close to the electoral base. Such an attempt was provided for in the Constitution of 1964, although councils have never been elected. Waiting for the ordinary law and the evolution of institutional dynamics to better clarify the way in which the relations between centre and periphery are going to be defined, and particularly the competences of the provincial and district councils elected, a situation persists in which all subnational political posts, besides the bureaucratic ones, are appointed by the government. Provincial governors, district commissioners and mayors are presently appointed by the president and depend on Kabul, and each ministry has peripheral offices at a regional level.

Constitution of rights
The Constitution of 2004 is characterised by a participatory and guaranteebased order, and it is full of acknowledgements of rights, expressed both explicitly and through references to international treaties. Article 7 rules that ‘‘the State conforms itself to the Charter of the United Nations, to the international treaties and conventions signed by Afghanistan, and to the Universal Declaration of Human Rights’’. Article 22 forbids any form of discrimination and provides for gender equality. The rights to life, freedom, trial guarantees, education, electorate and candidates, association, correspondence privacy, domicile, free circulation, property, labour, access to public administration and healthcare are provided for in specific articles of the constitution. A limit in the constitutional statement of rights is represented by the frequent reference to the limits imposed by the ordinary law, without identifying any principles and guidelines. Therefore, it seems theoretically possible that the law contradicts the provisions of the constitution. A successful experience in the strengthening of the protection of rights is represented by the Afghan Independent Human Rights Commission9 (AIHRC), initially established by the Bonn Agreement and thence confirmed by art. 58 of the constitution that bestowed a status of constitutional body on it. The commission, which is the first institution of this kind in the history of Afghanistan, has the task of monitoring the protection of human rights and investigating their violations, as well as ensuring the compliance of legislation with the international agreements and conventions signed by Afghanistan. The commission, made up of 11 members appointed by the president, operates both at a central and peripheral level, through provincial offices to which the violations of rights are reported. Nevertheless, as already mentioned, the distance between the declaration of rights and their concrete enforcement is still high, and passes through the adoption of coherent legislations besides the concrete guarantee of the compliance with regulations by all the bodies in charge and the judiciary and public order operators.
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Furthermore, especially as far as economic rights are concerned, they will be guaranteed only when the gigantic work of reconstruction of the economic structures of the country is completed – a path that according to estimates might demand another 10–15 years of commitment by the international community. It is therefore a race against the clock, during which the institutions of the new state shall succeed in not disappointing the expectations of citizens that were deprived for so long of any right and exposed to the atrocities made by different subjects.

Party system
Although the history of Afghanistan is rich in experience in the field of political parties, either accepted or not in the institutional arena during the different historical phases, the present situation does not seem to allow a sound multiparty system. Since the end of the seventies, in fact, the concept of political party has been more and more identified with the idea of armed faction, and still today this reality is hardly transforming itself, despite the attention paid during the constitutional process. Article 35 of the constitution, while asserting the right to form political parties, poses some precise limits, excluding those parties that ‘‘pursue political goals through military or paramilitary organisations’’, or that are affiliated to foreign political parties or that receive foreign financing. Furthermore, the formation and activity of a party based on ethnic groups, language, religious sects and regional questions is not accepted. These norms, which aim to launch a change in the associations and power logics of the country, nearly completely exclude the legitimacy of the present parties, although a flourishing of new political parties is taking place. An interesting attempt to innovate was launched by the candidate to the presidential elections Qanuni, envisaging the idea to unify several representatives from different ethnic groups within a coalition party.10 Some observers express their fear that the strict enforcement of constitutional norms in the subject of political parties, besides the ordinary law, represents a government attempt to limit the rise of an opposition, hence impeding the development of a multi-party system. It is desirable that the choice of an electoral system denying a role to the political parties and only accepting individual candidates is amended in the future thanks to the development of political groups within the parliament.

The new constitution shows particular attention on the subject of equality among citizens, aiming at countering the traditional predominance of gender
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and ethnic groups. A number of regulations aiming at stating this principle are present in several articles, already starting from point 8 of the preamble, which includes among other purposes of the constitution the idea of ‘‘creating a civil society free from oppressions, atrocities, discriminations and violence, and based on the principle of the rule of law, social justice, on the safeguard of human rights and dignity, and guaranteeing the fundamental rights and people freedoms’’. Article 4 concerns citizenship and states that 14 ethnic groups (Pasthun, Tagik, Hazara, Uzbek, Turkmen, Beluci, Pashai, Nuristani, Aymaq, Arab, Kirghis, Qizilbash, Gujari, Brahui) make up the Afghan nation. Article 6 rules the duty by the state to ‘‘create a wealthy society based on social justice, on the safeguard of human dignity and of human rights, on the accomplishment of democracy, and to guarantee national unity and equality among all ethnic and tribal groups, and to provide for the balanced development of all the areas of the country’’. Shares of parliamentary representation are destined to women and 10 seats of the Wolesi Jirga are destined to nomadic populations (Kuchi). The subject of equality had a central importance during the constitutional debate, and from two view points in particular: one aiming to guarantee a fair ethnic representation in decision-making bodies, and another of gender equality. It has been noted how the provision introduced by the Loya Jirga to flank the strong figure of the president by two vice-presidents aimed at guaranteeing the presence of representatives of different ethnic groups among the main institutional leaders. Furthermore, ethnic minorities obtained the official recognition of their languages, besides the two official languages, Pashto and Dari, in those areas in which they are used by most of the population. Article 16, paragraph 2, mentions in fact Uzbek, Turkmen, Baluci, Pashai, Nuristani and Pamiri as third official languages in the areas in which they are spoken by the majority of population. Another important subject of the constitutional debate included human rights and women’s rights in particular; this debate was given the greatest publicity by international mass media. The efforts by the constitutional commission, upon a big pressure by the international community, to guarantee the safeguard of rights of citizens, their freedom, equality and dignity against any form of inhuman treatment, are visible. For instance, frequent reference to international treaties is made; art. 58 establishes an independent commission for human rights available to all citizens; art. 29 forbids any form of torture or punishment violating human integrity; art. 34 guarantees the freedom of the press, etc. As far as women’s rights are concerned, art. 22 explicitly recognises their equality before the law. Furthermore, women’s parliamentary representation was strengthened in the final paper adopted by the Loya Jirga. Women, in fact, are guaranteed over one-fourth of seats in the Wolesi Jirga (House of the
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People) through a minimum number of two women elected in each of the 34 provinces, and 16% in the Meshrano Jirga (House of Elders), envisaging that half of the members appointed by the president shall be women. It is noteworthy that 18% of the Wolesi Jirga is made up of women that have been elected without the need of the quota system. However, the reality of present Afghanistan shows how the achievement of women’s equality, as well as the respect of minorities and of human rights, demands a commitment going well beyond the mere declaration of principle. It needs first of all the enforcement of a principle of the rule of law that is developed through the creation of public and judicial institutions, able to enforce the declaimed principles.

Title II of the constitution sets out, besides the rights, also the duties of citizens. In outlining a fair state providing for the needs of disadvantaged citizens and guaranteeing the availability of education and public healthcare to anyone, art. 42 of the constitution particularly states the citizens’ duty to pay taxes in compliance with the procedures provided for by the law. This aspect is particularly sticky in a country marked by the existence of a parallel and informal tax system, where financial payments that in Western countries would be considered as phenomena of bribery are still perceived as licit and right, but that end up in the hands of private citizens or even help supporting movements against the state. The attempt to channel the tax flows to the state coffers for the purposes of its strengthening and for a fair redistribution of resources finds another obstacle in the practice – which consolidated itself in the years of war – of collecting taxes at a local level and allocating them to the financing of the armies of warlords. Article 55 provides for the citizens’ duty to defend the country – namely, the national authority rather than the ethnic entity –, referring to the ordinary law the rule of conditions of military service. This regulation too must be considered in the light of the Afghan reality that emerged from decades of conflict, marked by the existence of several private armies of different warlords. During the last three years, a remarkable activity of demobilisation and disarmament of parallel armies took place – not yet completed – as well as the integration of tribal military forces in the military and police structures of the new state. Nobody, however, would be ready to bet on the loyalty of policemen and military forces, in the same way as the possibility of a rapid reorganisation of the armies in case of failure of the process of state construction is perceived just below the surface. Another duty of the Afghan people ruled in the constitution, art. 56, is to abide by the constitution and the laws, hence defining the statement of a principle of the rule of law that – as already mentioned – needs a
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constant and lasting construction in order to completely permeate the Afghan society.

In consideration of the above, what emerges is a constitutional dimension very similar to other models adopted by mature Western democracies. There is a sharing of functions between the executive, legislative and judiciary power, mechanisms of check and balance between institutions are set, as well as mechanisms for interinstitutional dispute resolution, and a sharing of responsibilities between centre and periphery is provided for. In particular, the limits to the presidential power are remarkable, however not subjected to the parliamentary vote of confidence on government programme and structure. The Wolesi Jirga is entrusted with both the task of ratifying the appointment of the ministers and the power to deprive them of their confidence on an individual basis. Some of the most significant decisions of the president, such as the appointment of the main high officers of the state, the decrees, the signing of treaties, etc., must be ratified by the Wolesi Jirga that has the right to reject them. The president owns the power to recommit the laws to the parliament, but if the latter adopts them through a qualified majority, the president must enact them. The limit of two presidential mandates is ruled, and the procedure of presidential impeachment is provided for. An important role of constitutional guarantee is ascribed to the Loya Jirga, or Grand Assembly, a body traditionally entrusted with the task of settling tribal disputes on a national basis, ruled under Title VI of the constitution. Article 111 entrusts it with the following tasks: – deciding on subjects relating to independence, national sovereignty, territorial integrity, and issues of national interest; – amending the constitution, with the majority of two-thirds of its members, and under art. 146 this cannot be done during the state of emergency; – deciding on the allegations of high treason against the president, in compliance with art. 69. The Loya Jirga regulated by the constitution acts as a final guarantor of the constitution and of the destiny of the country. Additional norms of constitutional guarantee are provided for in Title X, governing the possibility to amend the constitution. In compliance with art. 149, the possibility to amend the provisions on the compliance with the principles of the Islamic religion and the Islamic republican form are excluded; on the contrary, the amendments relating to the fundamental rights of the population are accepted only in order to make them more effective. As far as


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the other articles are concerned, the initiative to make amendments is vested in the president and in the majority of members of the National Assembly. Finally, art. 157 provides for the establishment of an independent commission for the control of constitution enforcement, whose members are appointed by the president upon the Wolesi Jirga approval. So far, this commission has not been established. As already underlined, all of these rules shall be confronted with the real ability of institutions to carry out and perform the functions ascribed to them in a framework of mutual respect and fair play.

Nearly four years after the Bonn Agreement and two years from the adoption of the new constitution, Afghanistan has completed the development of the architecture set out by the Charter, through the election of the House of Representatives and of provincial councils, on 18 September 2005. Elections represented an important moment of the construction, and with the inauguration of the National Assembly the path outlined by the Bonn Agreement will be accomplished and the transitional period provided for by the constitution will come to an end. Once the institutional framework is completed, the suitable working of the balances of powers stated in the constitution shall be assessed, as well as the ability of the whole Afghan society to mature and to go beyond the traditional tribal logics, often marked by authoritative and unjust customs. In this paper, the main features of the Afghan traditional society have been highlighted, as well as the way in which they interact with the effort underway to modernise the country. The adaptation of this modernitytradition binomial will be fundamental for the positive outcome of the present constitutional experiment, and it will fully emerge with the settlement of a tangible constitution and its distance from the formal constitution. In turn, institutions’ ability to meet the deepest social and economic dynamics of the country will represent the keystone to free Afghanistan from a long period of wars. To date, in fact, it is too early to consider that the challenge of governance has been met, due to the persistance of a series of instability factors: the country’s security is still in the hands of foreign armies on the one side and of military forces obeying to the warlords on the other side; opium production, although slightly decreasing according to 2005 figures, continues to represent a huge source of profits that feed corruption and criminal activities, severely challenging the rule of law and the social fabric; economic recovery is slow, and it is not yet succeeding in reaching the peripheral areas of the country, despite the present dislocation of international structures assisting the provinces.
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However, the last four years of Afghan history have been characterised by a gradual return to normal, episodes of violence have become less frequent, and the disarmament process of irregular armies has been constant, although not yet completed. The peacemaking process of Afghanistan and its return to democracy represent ambitious objectives, especially when one keeps in mind the historical and geopolitical complexity of Afghan events. However, if we change the standpoint and consider Afghanistan as a laboratory for the research of new balances between Eastern values and Western interests, these objectives become even more ambitious and significant. Iraq and in general the countries of the ‘‘Large Middle East’’ of G. W. Bush’s doctrine, carefully look at the Afghan developments. Shrewd observers, however, far from the illusion of being able to replicate them sic et simpliciter, acknowledge the importance of paying the highest possible attention to local peculiarities and to the feeling of ownership of the population.

1 Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions, Bonn, 5 December 2001. 2 This rule is referred to all the international treaties signed by Afghanistan until that time, and particularly: the Genocide Convention of 1948 (acceded 1956), the Geneva Convention of 1949, the Convention of on Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968 (acceded 1983), the Convention on the Elimination of All Forms of Discrimination Against Women of 1979 (acceded 1980), the International Covenant on Civil and Political Rights of 1966 (acceded 1983), the Convention on Elimination of All Forms of Racial Discrimination of 1966 (acceded 1983), the Convention Against Torture and Other Cruel, Inhuman Degrading Treatment or Punishment Rights of the Child of 1989 (ratified 1994). 3 Art. 160 provides that ‘‘Presidential elections and National Assembly elections shall take place at the same time’’. 4 Presently there exists only a provisional and controversial census, based on a census made in the 1970s, and integrated by a survey made by UNFPA. 5 It should be kept in mind that, following Daud’s coup d’état, a republic was established as early as 1973. 6 See the resolution of the European Parliament on Afghanistan, passed on 12 February 2004. 7 The Preamble of the 1973 Constitution of the Islamic Republic of Pakistan states that ‘‘the sovereignty of the whole universe belongs to Allah the Almighty only.’’ The Iranian Constitution of 1979 identifies the basis of the Islamic republican regime in the ‘‘exclusive sovereignty of God’’. 8 It is worth recalling that Italy plays a coordination role among the international actors in the sector of justice, which sees it committed in the front line to obtain a recovery of the rule of law. The national Leads for the reconstruction of the country were defined during the international conference of donors held in Tokyo in January 2002. They include the formation of the Afghan armed forces (United States) and police (Germany); the reform of the judicial system (Italy); the control over the lords of war and the disarmament of the armed forces controlled by them (Japan) and the fight against drugs-trade (United Kingdom). 9 The commission was regulated through the Decree of the Presidency of the Interim Administration of Afghanistan on the Establishment of an Afghan Independent Human Rights Commission, June 2002, Annex One, Article 9. 10 Yunus Qanuni, the main opponent of Karzai in the last presidential elections in which obtained 15% of votes, announced the creation of an opposition party with a view to the
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legislative elections in September. Qanuni coalition, called National Understanding Front, also includes Mohammed Mohaqeq, a ‘‘lord of war’’ from the hazara ethnic group, that during the last presidential elections obtained 10% of votes, the pashtun candidate Ahmad Shah Ahmadzai and the tajiko Abdul Hafiz Mansur that obtained 2% of votes during the last presidential elections.

Barry M (2002) Massoud: de l’islamisme à la liberté. Louis Audibert, Paris Berkowitz D, Pistor K, Richard J (2003) The transplant effect. American Journal of Comparative Law 51: 163–203 Ciminello C (2004) La nuova costituzione afghana: un compromesso tra tribalismo, islam e diritto moderno. Associazione Italiana dei Costituzionalisti Chronache, Degli Abbati C, Roy O (2002) Afghanistan – l’Islam afghano dalla tradizione alla radicalizzazione talibana (871–2001). ECIG, Genoa Kamali MH (2004) Islam and its Shar’a in the Afghan Constitution 2004 with special reference to personal law. Conference ‘‘The Shari’a in the Afghan Constitution and Its Implications for the Legal Order: Family and Succession Law, Commercial Law and Trade.’’ Max Planck Institute, Hamburg Marsden P (1999) The Taliban: war, religion and the new order in Afghanistan. Oxford University Press, New York Petrillo PL (2004) Afghanistan: approvata la nuova Costituzione nel nome di Allah e dell’Islam religione sacra. Diritto Pubblico Comparato ed Europeo 2004: 145–148 Rashid A (2001) Taliban: militant Islam, oil and fundamentalism in Central Asia. Yale University Press, New Haven, Conn Rubin B (2002) The fragmentation of Afghanistan. Yale University Press, New Haven, Conn Schetter C (2005) Ethnoscapes, national territorialisation, and the Afghan war. Geopolitics 10: 50–75

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