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'Not so much a constitution as an
aspiration'
By Jim Lobe
WASHINGTON - Political power plays at the
recently concluded assembly to write a new constitution
for Afghanistan raise serious questions about whether
the country can hold free and fair elections as
scheduled later this year.
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 tribal council, 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,
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 US, 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 - which was created
by the December 2001 Bonn Agreement after the US-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,
which also observed the process, released a statement
two days before the January 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 UN 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).
NATO is the North Atlantic Treaty Organization.
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 the ISAF
into the countryside, as long called for by both the UN
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 UN'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 persisted.
(Inter
Press Service)
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