Constitutional Loya Jirga
Agreement was finally reached on 4th
January 2004 on a new constitution for Afghanistan. Discussion at the Constitutional
Loya Jirga convened on 14th December was often heated and revealed clear
fault lines between Pushtuns and non-Pushtuns, between men and women, between
conservatives and liberals and between those who had fought in the jihad
and those brought in from the diaspora. There was the inevitable manoeuvring
behind the scenes, with the US government, among others, actively seeking
to influence the outcome. The participation of 100 women among the 502
delegates ensured that their voice was heard and, although there were comments
made from the floor which were indicative of conservative values, there
was also a willingness among some of the traditional elements to listen
to the perspectives expressed by the women delegates.
It was clear that President Karzai had sought to build Pushtun support for the constitution in advance of the Loya Jirga, in a likely effort to reduce backing for the Taliban in the south, and that he was reluctant to give too many concessions to the other minorities, notably the Tajiks, Uzbeks, Turkmens and Hazaras. These minorities challenged his power by arguing against a strong presidency and, instead, advocating for the creation of a post of Prime Minister or at least a parliament with sufficient powers to maintain an effective check against excessive Presidential power. However, concern was expressed by those arguing for a strong presidency that the absence of a strong party political tradition would leave parliament subject to factional divisions based on the possession of force.
The manoeuvrings surrounding the Constitutional Loya Jirga would thus appear to have strengthened the relative power of the Pushtun population within the government. It is clear from the proceedings that the Tajiks, Uzbeks, Turkomans and Hazaras now fear a gradual return to the previous Pushtun dominance and this is likely to heighten inter-ethnic tensions and make the ethnic issue a more prominent one in the months to come.
A check on the power of the President was introduced through a provision that there should be two Vice-Presidents ,"one first and one second" rather than one as stipulated in the draft. There is said to be an understanding that these should not be from the same ethnic group as the President but this is not stipulated in the constitution. The powers given to the National Assembly were strengthened by an amendment which required its authorisation for measures to create "a strong and sound administration" and realise "reforms in the administration system of the country". A further amendment required its authorisation for "fundamental policies of the state" determined by the President. The agreed constitution also included a new provision that "The President is responsible to the nation and the Wolesi Jirga in accordance with this article". The Wolesi Jirga will be the lower house of the planned National Assembly.
A key area of debate at the Loya Jirga was whether elections to the National Assembly should be held at a later date than those for the President. Those who were calling for a strong parliament were able to secure a provision that "every effort shall be made to hold the first presidential election and the parliamentary election at the same time". However, there remains considerable uncertainty regarding the timing of both elections while many argue strongly for them to be postponed until the security situation is conducive to a free and fair process.
The proposal in the draft constitution to have the national anthem only in Pashto provoked angry responses from those representing the north of Afghanistan and insistence that Uzbaki and Turkmen should have official status in areas where they are spoken brought the Loya Jirga to near deadlock at the very end. It was finally agreed that the Turkic languages (Uzbaki and Turkmen) together with Baluchi, Pashar, Nuristani and Pamiri should be - in addition to Pashto and Dari - the third official language in areas where the majority speaks them but Pashto remained the only language of the National Anthem. Respect for ethnic identity was also strengthened by additional text to an Article on Nationality to read "The nation of Afghanistan is comprised of the following ethnic groups: Pashtun, Tajik, Hazara, Uzbak, Turkman, Baluch, Pashai, Nuristani, Aymaq, Arab, Qirghiz, Qizilbash, Gujur, Brahwui and others."
It would also appear that President Karzai and US officials negotiated, in advance and behind the scenes, with some of the major power holders to secure their support for the constitution. These negotiations may have included a consideration of the degree to which the constitution would draw on Islamic provisions. One key concession was the replacement of a clause in the draft that "no law can be contrary to the sacred religion of Islam and the values of this constitution" by the addition of "the beliefs and provisions of Islam" and the ommission of "and the values of this constitution". This creates the risk that those arguing for adherence to the United Nations Charter and the Universal Declaration of Human Rights will lack legal backing in their efforts to seek compliance. There are similar risks arising from an amendment which empowers the Supreme Court to "review compliance with the Constitution of laws, legislative decrees, international treaties, and international conventions and interpret them, in accordance with the law". The provision in the final constitution that an "Independent Commission for the Supervision of the Implementation of the Constitution will be established" creates a further opportunity for those opposed to particular provisions of the constitution to seek to influence how they are interpreted in practice. Those seeking to strengthen the position of Islam within the constitution were also able to secure an amendment so that Article Two became "The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Afghanistan" through the addition of "the state of the Islamic Republic of". The conservative element, in addition, achieved an amendment to prevent the "production and consumption of intoxicants".
On the other hand, there was a clear assertion of the view that moderate Islam should prevail over more extreme forms through the addition of text to ban political parties based on "Islamic school of thought".
Important changes were made to the draft to strengthen the position of women in Afghanistan. The addition of "-whether man or woman -" to create a new provision that "The citizens of Afghanistan - whether man or woman - have equal rights and duties before the law." is one such example. Equally significant was the provision that at least two delegates should be elected from each province to the Wolesi Jirga, thus doubling female representation. Women will thus have 64 out of the 250 seats. The provision in the draft constitution that the President appoints 50% of the members of the Meshrano Jirga, or upper house of the National Assembly, was ratified. The President was also required to appoint two representatives from the disabled and impaired and two representatives from the Kuchis (nomads) to the upper house.
Education was accorded high priority through a provision that education should be provided free of charge by the state up to "the level of the B.A." as opposed to secondary level, as proposed in the draft constitution. The final constitution also stipulated that the state was obliged to provide health care free of charge, thus challenging proposals currently under consideration to charge fees for medical services.
The needs of those affected by disability were accorded increased recognition through amendments to provide medical services and support to "disabled or handicapped" people, guarantee their "rights and priveleges" and enable "their active participation and re-integration into society".
Tensions between those who had remained in Afghanistan to fight in the jihad and those who had returned from the diaspora in the West to take up senior positions were manifest in several changes to the draft. A key example was the addition of "just resistance of all people of Afghanistan" to provide a new wording for the third clause of the Preamble to read "While acknowledging the sacrifices and the historic struggles, rightful Jehad and just resistance of all people of Afghanistan and respecting the high position of the martyrs for the freedom of Afghanistan." A further example was a provision that a Minister could not hold dual nationality unless his nomination was confirmed by the Wolesi Jirga. This was clearly targeted at current and potential ministers brought in from the Afghan diaspora.
Security
A spokesman for the coalition military has acknowledged that six children were killed in a bombing raid by US-led coalition forces on 5th December near Gardez in eastern Afghanistan. The house attacked was said to belong to a member of the Taliban, but it later transpired that the man targeted was not thought to have connections with terrorist activity and was working in cooperation with the Afghan government.
Coalition forces have similarly admitted killing nine children when they bombed the house of a suspect that they were targeting near Ghazni on 6th December. Unlike other accidents in which civilian death were caused, when the US stated that it was not their policy to pay compensation, the US-led coalition forces agreed to "make every effort to assist the families of these innocent casualties". Human Rights Watch commented that "there is now a pattern of mistakes, apparently as a result of faulty intelligence, that has led to too many civilian deaths and no clear changes in the way the United States plans and carries out military operations", adding "In targeting a single house in order to attack a single person, it is unclear why such a heavy weapon was used".
The threat by the Taliban and other radical elements, manifested in terrorist attacks, shows no sign of easing. On 4th December, Associated Press reported that a convoy of 60 government census workers had been ambushed in Farah province. One of the workers was killed and eleven were injured, five of them seriously. The group was doing preliminary work for the first national census since 1979.
A bomb exploded in a bazaar in Kandahar on December 6th, injuring about 20 people, at least three seriously. A spokesperson for the Taliban admitted responsibility for the blast and said that it was intended for US soldiers shopping in the bazaar but went off earlier than planned. The chief of police said that there had been two previous incidents in the city in that week, a grenade attack which had seriously injured two US soldiers and a further grenade attack on a mosque.
On the same day, two Indian engineers working on the Kabul to Kandahar highway were kidnapped while shopping at a district centre in Zabul. They were released, unharmed, on 23rd December, following negotiations with tribal leaders and village elders. It did not appear that the kidnappers were linked to the Taliban although the Taliban had previously claimed responsibility and made certain demands in relation to their release.
On 8th December, a Pakistani engineer was shot dead and his Afghan driver wounded when gunmen attacked their vehicle on the Kabul to Kandahar highway in Ghazni Province. A Taliban spokesman stated "We have repeatedly said that no work should be done in Afghanistan in the presence of Americans. Anyone who assists America or the Afghan government is liable to death". The engineer was working under contract to the US firm, Louis Berger Group.
On 15th December, a bomb was exploded under a parked vehicle belonging to a de-mining NGO, OMAR, in Rodat District of Nangarhar Province in eastern Afghanistan. The explosion, which happened 15 metres from the Jalalabad to Torkham highway, destroyed the targeted vehicle and damaged two adjacent ambulances but no one was killed or injured.
A bomb exploded in an area of restaurants and shops in Jalalabad on 20th December, killing one man and injuring another. Another bomb explosion had damaged the office of the Afghan Women's Peace Committee in the city a week earlier but there were no casualties.
On 24th December, a bomb damaged a UN guest house in Kabul. Although it was occupied at the time, there were no casualties.
A potential suicide bomber was arrested by the intelligence service near Kabul airport on 28th December. The device that he was carrying exploded while he was being driven away, killing him and five intelligence personnel.
On 12th December, Lakhdar Brahimi, the outgoing Special Representative of the UN Secretary General warned that, unless security improved, the UN might soon have to abandon its two-year effort to stabilise Afghanistan. He also called for a second Bonn Conference to address 1) the limited representativeness of the Government and absence of sustained efforts to promote national unity and reconciliation; 2) the prevailing insecurity in many areas; and 3) the low pace of reconstruction and need for ensuring the availability of adequate financial resources to rebuild a peaceful and stable Afghanistan. In his closing address to the Loya Jirga on 4th January, he spoke of "the insecurity that we don't see much of in the press: the fear that is in the heart of practically every Afghan because there is no rule of law yet in this country. The people of Afghanistan are afraid of the guns that are held by the wrong people and used not to defend them...but to frighten people, to terrorise people."
The NGO, Medecins Sans Frontieres, took the decision at the beginning of the month to suspend its health care programme at the Zhare Dasht camp for internally displaced people to the west of Kandahar. The agency stated that the risk for MSF staff working outside of Kandahar had reached unacceptable levels "against the background of escalating violence against aid agencies and amid a confusion of roles to which the agendas of all parties in the conflict have equally contributed". It stressed that, "as an independent humanitarian organisation, MSF's decision to be present in Afghanistan is based on the core principles of humanitarian action: unconditional provision of assistance based on an assessment of human needs without taking sides in a conflict". Prior to the suspension, MSF was providing basic health care to the 40,000 population of the camp, including maternal and neonatal health care and immunisation services for children and pregnant women.
On 3rd December, it was announced that General Fahim had agreed to remove militia and heavy arms from Kabul, as provided for under the Bonn Agreement. His failure to do so, to date, has been a major cause for concern and Human Rights Watch and others have commented on the climate of impunity that has existed in Kabul, as elsewhere in the country. A spokesman for ISAF said that this was likely to start in January
Speaking at the end of November, the US Defence Secretary indicated that the US would like NATO to eventually take over the entire military mission in Afghanistan. NATO is reported to have discussed the proposal but there is no indication, as yet, of its willingness or capacity to taken this on. Mr Rumsfeld visited Kabul and Mazar-i-Sharif on 4th December, which included talks with Rashid Dostam and Atta Mohammed aimed to encourage them to surrender their heavy weapons. Dostam is reported to be reluctant to hand over his heavy artillery and armour. By 21st December, Atta Mohammed had given up 80% of his heavy weapons while Dostam had only delivered 50%.
The US government established a new Provincial Reconstruction Team in Herat on 1st December. It is not yet clear what the focus of this PRT will be, which will have a mandate to cover Herat and three neighbouring provinces. An additional PRT was set up in Kandahar on 11th December. A new PRT in Kunduz, under German leadership, formally came under the command of the International Security Assistance Force on 31st December, the only PRT which is not commanded by the US-led Coalition.
The Coalition plans to establish additional PRTs in certain southern and eastern provinces, including Zabul, Uruzgan, Khost and Kunar, where the Taliban and other radical elements have been particularly active.
The new US commander, General Barno, recently announced a change in strategy aimed to address the Taliban threat "through a variety of efforts", including initiatives involving "reconciliation and reintegration". US officials were reported to have concluded that the Taliban revival was more complex and rooted in Afghan society and thus required a more comprehensive solution than the threat from Al-Qaida.
The efforts to counter the radical threat continue to involve a high level of military activity by the Pakistan government in the tribal areas of Pakistan aimed to prevent infiltration by the Taliban and other radical elements into Afghanistan. Two assassination attempts on President Musharraf, on 14th and 25th December, can be seen as an expression of opposition, by radical elements, to the cooperation of the Pakistan military with the US-led war on terror.
Registration for elections
On 1st December, UNAMA commenced the registration of voters, as planned, for the elections due to be held in June 2004. By 4th January, a total of 243,108 had registered. Of these 192,028 were men and 51,080 were women. Unless the registration process can be significantly accelerated, it is unlikely that it can be completed in time for the elections envisaged for June under the Bonn Agreement
Economic developments
USAID announced on 14th December that the first phase of the work to reconstruct the Kabul to Kandahar highway had been completed, with a layer of asphalt being laid over 242 miles funded by USAID and 31 miles funded by Japan. The remaining 27 miles had already been reconstructed by the Taliban. Additional layers of asphalt will be laid in the spring and summer of 2004. USAID contracted the US firm, the Louis Berger Group, to manage the programme and it subcontracted the work to one Afghan-American firm, three Turkish firms and one Indian firm. The journey time has been reduced from two days to approximately five hours. However, travelling on the road carries a high degree of risk because of the adverse security situation.
The World Bank has approved additional funding for Afghanistan. This includes a grant of $95 million for the National Solidarity Programme which supports reconstruction at the village level and currently benefits 3,082 villages. Interest-free loans of $40 million and $31 million, respectively, have been issued, in addition, to rehabilitate the agricultural irrigation system and upgrade customs. The latter project is aimed to increase government revenue from trade, reduce corruption and prevent smuggling by developing checkpoints at border crossings and customs facilities at Kabul airport.
The Indian government is co-funding, with the Agha Khan Development Network, a planned hydro-electric plant in Bamyan. Construction of the plant will be undertaken by the AKDN and work is due to start in March 2004.
Humanitarian developments
ICRC has handed over to the local authorities a rebuilt water-supply system that serves 150,000 people in north-west Kabul.
The preliminary findings of the National Risk and Vulnerability Assessment (NRVA) for 2003 indicate that, out of an estimated 16 million rural Afghans, 3.2 million will not be able to meet 80% of their minimum food requirements. The highest proportion of these were found in the south and east of the country, primarily in districts affected by insecurity, adverse climatic conditions and limited labour employment opportunities. This population will be targeted for the National Emergency Employment Programme and WFP's food assistance interventions. WFP has pre-positioned 32,000 metric tonnes for around 650,000 people in remote areas of the country. The assessment found that the major priorities for rural households were water, access to health facilities, roads and access to education. The increased cost of fuel and electricity during the winter months is also a major concern. The NRVA was carried out by the Afghan Ministry of Rural Rehabilitation and Development, the Ministry of Agriculture and Animal Husbandry, the Ministry of Public Health and the Ministry of Women's Affairs, with support from the UN, the World Bank, AREU, DFID and NGO partners of the National Surveillance System. More detailed analysis will be available in mid February.
UNICEF reports that the number of girls attending school in Afghanistan has reached 1.2 million, representing 30% of all students enrolled but comments that 1.5 million girls are still not attending school. Among the factors cited for this shortfall in attendance are distances between homes and school buildings, lack of sanitation facilities, shortage of women teachers and community attitudes towards education.
In publishing, on 4th December, the preliminary results of the first livestock census ever conducted in Afghanistan, the Food and Agriculture Organisation of the UN commented that it could take up to ten years for the animal herds in Afghanistan to regenerate naturally following the drought of 1999-2003.
Refugees
An estimated 1,300 Afghan refugees were killed in the major earthquake that hit Bam in Iran on 26th December, according to the Iranian government. The Afghan population of the city was 3,600.
UNHCR, the Ministry of Refugees and Repatriation and Medecins Sans Frontieres are providing winter items, including blankets, cookers, heaters and charcoal to 1,800 families living in tents and squatting in destroyed buildings in Kabul. In addition, UNHCR is positioned to deliver winter items for over 47,000 returned or displaced families who may be in need. UNHCR, through its Shelter Programme, was able to support the reconstruction of 34,000 homes during 2003, benefiting about a quarter of a million returnees.
Assistance to returns from Pakistan remains suspended until security improves along the border.
This report is published by the British Agencies Afghanistan Group (BAAG) Project, based at the Refugee Council, London. The Project is funded from a number of sources, including the UK Government's Department for International Development and individual British NGOs operating in Afghanistan. However, the views expressed are those of the BAAG Project alone and do not represent any official view of its funders. In producing this Review, every effort has been made to achieve accuracy, drawing on the many information sources available.
For more information, please contact:
The Secretariat, BAAG at Refugee Council, 240-250 Ferndale Road, London SW9 8BB; Telephone: 00 44 20 7820 3098/7840 4400; Fax: 00 44 20 7840 4388 Email: baag@refugeecouncil.org.uk