The Constitution of Afghanistan became the official law of Afghanistan when the 2003 Loya jirga approved it by the consensus on January 4, 2004. It evolved out of the Afghan Constitution Commission mandated by the Bonn Agreement. The constitution provides for an elected President and National Assembly. Although Presidential elections took place on October 9 2004, power remains with interim president Hamid Karzai and his transitional government, which has been in place since June 2002. Elections for the National Assembly are delayed further, perhaps until mid-2005.
The Constitution consists of 160 articles.
The document was officially signed by interim president Hamid Karzai on January 26. However, two days later a group of delegates led by Abdul Hafiz Mansoor made claims that the version Karzai signed contained more than fifteen changes from the document approved of on January 4. The group sent a copy of their complaints to the U.S. embassy, the United Nations Assistance Mission in Afghanistan, the European Union and former king Mohammad Zahir Shah. (For more, see below under Controversy)
Executive Branch
The constitution involves a strong presidential system. The President of Afghanistan is elected directly by the Afghan people to a five-year term, and can be elected no more than twice. The president has two vice-presidents .
The president must be Muslim, an Afghan citizen born of Afghan parents, and should not be guilty of war crimes.. The president is the commander-in-chief of the armed forces.
Presidential responsibilities will include:
- Determining policies with the approval of the National Assembly.
- Appointing the nation's ministers, the attorney general, the director of the central bank, and the justices of the Supreme Court with the approval of the main legislative body, the Wolesi Jirga .
- Appointing the nation's first and second vice presidents.
Bicameral Parliament (Legislative branch)
The National Assembly of the Islamic Republic of Afghanistan consists of two houses: the Wolesi Jirga (House of the People) and the Meshrano Jirga (House of Elders).
The Wolesi Jirga, the more powerful house, consists of 250 delegates directly elected through a system of proportional representation. Members are elected by district and serve for five years. At least 64 delegates (two from each province) must be women; they are appointed by the president who also nominates two representatives of the physically disabled, and two Kuchi nomads. The Wolesi Jirga has the primary responsibility for making and ratifying laws and approving the actions of the president.
The Meshrano Jirga will consist of an unspecified number of local dignitaries and experts appointed by provincial councils, district councils, and the president. The lower house passes laws, approve budgets and ratify treaties - all of which will require subsequent approval by the Meshrano Jirga. The lower house has considerable veto power over senior appointments and policies.
Judicial Branch and Court System
The republic's top court is the Stera Mahkama (Supreme Court). Its members are appointed by the president for 10-year terms. There are also High Courts, Appeals Courts, and local and district courts. Eligible judges can have training in either Islamic jurisprudence or secular law.
Courts are allowed to use Hanafi jurisprudence in situations where the Constitution lacks provisions.
Cabinet
Ministers that hold multiple citizenships must gain approval of the parliament.
Districts
The constitution divides Afghanistan into 32 provinces. Each province is governed by a provincial council with members elected for four-year terms. Every village and town will also have councils, with members serving for three years.
Religion
The Constitution describes Islam as its sacred and state religion. A system of civil law is described, but no law may contradict the beliefs and provisions of Islam. It was widely reported that Sharia law is not specifically mentioned, but in fact Hanafi jurisprudence is one of the six branches of Sharia law. Moreover, concessions are made to Shia jurisprudence in cases arising strictly between Shi'ites.
Followers of other religions are "free to exercise their faith and perform their religious rites" within the limits of the law. There is no mention of freedom of conscience.
Civil & Human Rights
Citizens are guaranteed the right to life and liberty, to privacy, of peaceful assembly, from torture and of expression and speech. If accused of a crime, citizens hold the right to be informed of the charges, representation by an advocate, and presumed innocent until proven guilty. Women are protected equally before the law; however, the tenents of Islam are given the most moral significance.
There is no absolute protection of free speech based on individual liberty.
Provisions are made to insure free education and healthcare for citizens.
Language
The constitution does not designate a national language. However, it names Pashtu as the language of the Afghan National Anthem , and Dari as the other main language. Six ethnic minority languages, including Uzbek and Turkman , have official status in the regions where they are most widely spoken.
Kuchis
Article 14 obliges the government to implement effective programs for "improving the economic, social and living conditions" of nomads (Kuchis) as well as adopting "necessary measures for housing and distribution of public estates to deserving citizens".
The constitution requires the president to choose two special Kuchi representatives to sit in the Meshrano Jirga.
The constitution also provides for the promotion education for nomads.
Controversy
Two days after the constitution was officially signed by president Karzai, claims were made that the version signed contained over a dozen changes from the document approved by the Loya Jirga. Those changes included:
- Article 16 (on language): The Dari/Pashto text contains a paragraph not found in the English translation. This paragraph states: "National scientific and administrative terminology shall be maintained," which critics have interpreted as meaning that certain Pashto terms shall be kept only in Pashto and not translated into Dari or other languages.
- Article 50: This article obliges the "State" to undertake administrative reforms. The opposition insisted that this should be "with the approval of the National Assembly," which is how it is worded in the English translation, but it is omitted in the Dari/Pashto version.
- Article 64 (powers of the president): As part of the debate over the powers of the president, the opposition demanded that, in regards to the check the Wlesi Jirga has over the president, the wording be changed from the "confirmation" (ta'id) of presidential decisions to "approval" (taswib). The argument posed by the opposition insisted idea that ta'id confers only the right of rubber stamping, while tawib includes the right to reject. The opposition thought that all "confirmation" had been changed to "approval", but they are not.
External link
- Afghan Constitution Commission draft presented November 3, 2003 http://www.afghanistan-mfa.net/draft_co.pdf PDF
Last updated: 02-07-2005 18:56:59
Last updated: 05-03-2005 09:00:33
