The constitution-making exercise in Afghanistan is an important step forward in the nation-building process. The people of Afghanistan are weary of war and hunger for peace. The Islamic Transitional State of Afghanistan (ITSA) is committed to constitution-making exercises that engage all segments of Afghan society, strengthen a sense of national identity, and aim for a consensual document acceptable to all Afghans. This commitment to an inclusive process adheres to the principles of the Bonn Agreement, most notably "the right of the people of Afghanistan to freely determine their own political future in accordance with the principles of Islam, democracy, pluralism and social justice."
The Bonn Agreement stipulates that a new constitution shall be adopted by a Constitutional Loya Jirga (CLJ), which must be convened within eighteen months of the establishment of the Transitional Authority. The Agreement states that a Constitutional Commission ("Commission") shall be established by the Transitional Authority with the assistance of the United Nations. It is also agreed that "free and fair elections" to choose a "fully representative government" must be held no later than two years from the date of the convening of the Emergency Loya Jirga.
Given that the elections must be held under the new constitution, the constitution must be in place before the elections. Hence, the process of making a constitution for Afghanistan is critical to the success of the Bonn Agreement.
The constitution-making exercise has been accomplished through three constitution-making organs. These three organs are:
• The Drafting Commission ("Drafting Commission")
• The Constitutional Commission ("Commission")
• The Constitutional Loya Jirga ("CLJ").
A Secretariat supported the functions of each of the three constitution-making bodies. The Secretariat has been providing the Drafting Commission with the necessary administrative and logistical support and expands to support the Constitutional Commission. The international community, with the United Nations in the lead, were to coordinate closely with the Secretariat and each constitution-making organ to ensure that each step in the process has the necessary support, both material and technical, to successfully complete the constitution-making process.
Now Afghanistan's new constitution is finally scrambling toward the finish line. The government has kept the draft constitution tightly under wraps, and no official with knowledge of the document is willing to discuss details openly.
But interviews with officials and an English-language copy of a recent, but not final, draft, indicate that the constitution will establish an Islamic republic whose laws are based on international conventions but where "no laws shall run counter to the sacred principles of Islam."
The country will be run by a president, a prime minister and a parliament with two chambers -- a house of the people and a house of elders. The prime minister will be picked by the president but will need parliamentary approval.
The penultimate draft, which has since been amended and is therefore not definitive, lays out the rights of men and women to speak freely, form political parties, vote and run for office, and get a free education.
Creating the legal cornerstone of a country rife with ethnic, political, and religious rivalries was no easy task, according to officials close to the process. The commission was criticized as lacking technical legal skill and failing to consider expert advice and public opinion.
Political and religious factions vied to influence the document, Afghan and Western sources said. The Northern Alliance, which was rewarded for its role in ousting the Taliban with powerful Cabinet positions, favored a power sharing structure that included a president and prime minister, because they foresee a Northern Alliance figure holding the post of prime minister if Karzai wins reelection next year.
The section of the penultimate draft that deals with the relation between religious and secular law is vague, hinting at the commission's struggle to please different religious factions.
The draft says the judiciary should fall back on Islamic law when there is "no clear law in this constitution or other laws" with which to judge a case. It leaves open the possibility of judging the case according to the laws of the Hanafi school, followed by the Sunni majority in Afghanistan, or the Jafari school, followed by the country's minority Shiites.
Critics said the commissioners did not give the public a big enough voice. A UN-sponsored consultation, in which 400,000 questionnaires were distributed to gather views from Afghans inside the country and in Pakistan and Iran, was dismissed by some who said the questionnaires were too technical and their views were ignored.
With the draft in Karzai's hands, the most heated debates on the country's power structure, the rights of women, and the role of Islam may lie ahead. Afghan and Western officials expect the text to be pulled in many directions at the Loya Jirga, when 500 delegates will gather in a huge tent in Kabul to debate every line.
One question is the role of the former king, Mohammed Zahir Shah. He has said he does not wish to return as monarch, but he still enjoys popular support, especially among the ethnic Pashtuns who traditionally ruled Afghanistan and feel sidelined in the new government. Still one of the main concerns is, will the government be able to enforce