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Might Afghans Amend The 2004 Constitution? Hints from a Televised Presidential Debate

Clark B. Lombardi & Shamshad Pasarlay, University of Washington School of Law

2014 marks the tenth anniversary of the current Afghan Constitution, as a post last month on FP.com (cross-posted on this blog) noted. In that post, two American experts in comparative constitutional law, Tom Ginsburg and Aziz Huq, critiqued the performance of the government that had been formed under this constitution and made some thoughtful suggestions to improve Afghan governance.

American Professors are not the only people thinking about governmental performance or about possible improvements. Indeed, if one follows the campaigns of the frontrunners in the upcoming presidential election to be held this Saturday, April 5, it becomes clear that Afghans are thinking long and deep about these issues. And some Afghans appear to be contemplating even more dramatic “fixes” than those suggested by Ginsburg and Huq.

The 2004 constitution created a unitary state with a presidential system of government. After its ratification, the President of the interim government, Hamid Karzai, was elected as the country’s first democratically elected president. Karzai has been in power since then. Term limits, however, prevent him from running again.

On April 5, Afghanistan is scheduled to hold the first round of Presidential elections. It is likely that no candidate will win enough votes in the first round to be elected outright, in which case elections will go to a second round. If all goes according to plan, Hamid Karzai will at some point later this summer hand power to a new President.

The race to succeed President Karzi has been remarkably vibrant. At this point, three candidates have emerged as front runners. These are the former foreign minister and runner up in the last election, Dr. Abdullah Abdullah, the former minister of finance and, before that, World Bank official, Dr. Ashraf Ghani Ahmadzai, and the former foreign minister, Dr. Zalmay Rasool.

All three frontrunners are clearly aware that most Afghans are unhappy with the performance of Afghanistan’s government. None is running as the champion of the status quo. Admitting that Afghanistan’s government has been inefficient and often corrupt, each candidate promises to cure the pathologies of governance.

At the same time, each has championed a different approach to fixing it. The three frontrunners disagree sharply about whether a fix should include a significant amendment to the constitution—one designed to change the basic structure of government.

At the time that the 2004 Constitution was drafted, some proposed that Afghanistan adopt a semi-presidential rather than the presidential system that was eventually adopted. Others proposed that Afghanistan become a federal state rather than the unitary state it did. Parliamentary empowerment and federalism, they argued, would better reflect the “facts on the ground” in Afghanistan. Adopting either would formalize the way that decisions were actually made and make the process of decision-making more transparent. Critics suggested, however, that it would be unwise to formalize the power of local power-brokers—either in the national government or in regional government. Doing so would embolden regional power-brokers to seek autonomy and perhaps independence. If the Constitution built a unitary state with a strong, unifying presidency then Afghans would come to view it as protecting the great benefit of all Afghans. The various Western nations that were then providing military support to Afghanistan also favored the idea of creating a unitary, presidential state on the theory that it would be helpful to coordinate military policy with a commander-in-chief who had a fixed term of office. The critics won. Under the 2004 Constitution Afghanistan came into being as, at least on paper, a unitary state with a strong presidential form of government.

In fact, however, the central government is very weak. Since the founding of the country, the writ of the Afghan government has never run very far outside of a few cities—the national capital, Kabul, and a few provincial capitals in which the ruler has placed strong figures and backed them up with significant military force. To implement national policies outside of these areas, President Karzai’s government has cut deals with local power-brokers.

Increasingly, negotiation with local power-brokers occurs in parliament. Afghanistan’s regional powers and some of its interest groups have proxies in Parliament. At times, therefore, they can use the parliament to negotiate with the president. Nonetheless, the president does have the ability in many circumstances to act independently of Parliament – particularly when there is gridlock. Indeed, Karzai has often acted in a way that disregards parliamentary wishes.

Under the circumstances, participation in a fairly weak Parliament does not seem to give all regional power-brokers a sense that their feelings are being fully taken into account. Nor does it give all of them a feeling of obligation to support the policies that the executive ultimately tries to impose. Important local figures sometimes use their power unofficially to stymie the implementation of national policy or to pursue within regions under their control their own policies – policies that may not have the formal blessing of the government and, indeed, may be contrary to the national interest.

To maximize compliance with its policies, the executive not only has to negotiate with parliament, but also in other, less transparent ways with regional powerbrokers. Over the past ten years, the President has often tried to bring particularly important people with political or military power in a region into the cabinet – giving them access to power and, given the endemic corruption in the country, to lucre. Notwithstanding significant concessions to certain regional powerbrokers, which breed inefficiency and corruption, the government still has not built enough regional support for its policies to ensure that the policies it develops are imposed uniformly and efficiently throughout the country.

In short, government policy in Afghanistan is created through an opaque system of negotiation with regional power brokers in the parliament, cabinet or regional governments. What policies are established are inconsistently enforced, again depending on the power and desires of local power-brokers. In consequence, although Afghanistan nominally has a president implementing policy for a unitary state, its president operates in at least some ways like a prime minister of a federal state. Although he has a fixed term, the President, to be effective, must establish policies in negotiation with a cabinet of powerful figures, each of whom has his own independent power base. And even having done so, the government’s ability to impose its will cannot be assumed in all parts of the country.

Afghans are fully aware that their government is not operating as the constitution says it is supposed to. The upcoming presidential election has promoted lively discussion about Afghan governmental structure and internal operating procedures. Candidates have been openly arguing about whether Afghanistan should revisit basic choices made under the 2004 constitution and, if not, how they might change the government’s structures and procedures so that it operates more efficiently and transparently in a world where, for better or worse, regional powerbrokers hold significant power. Speaking in Dari, to an Afghan audience, the frontrunners seem to be campaigning in part upon their very different visions for how decisions should be made in Afghanistan. It is not clear that a candidate, were he to win, would be able to achieve the types of basic change that he is proposing. Nevertheless, it is striking that all three candidates engage with each other and with the public on very fundamental questions of this sort.

A review of a recent television debate makes clear that candidates are being asked their opinions on questions of government structure and procedure, and that the frontrunners hold quite different visions of the state. On February 4, 2014, ToloNews hosted a televised debate among the then most prominent candidates for the Presidency of Afghanistan: Dr. Zalmay Rasool, Dr. Ashraf Ghani Ahmadzai, Dr. Abdullah Abdullah, Raheem Wardak, and Abdul Qayom Karzai. Since then, the last two candidates have dropped out of the race. The debate can be seen in its entirety here. In the debate, the candidates were asked, among many other topics, about the possibility of amending the constitution. Today’s three front runners took very different positions.

Dr. Zalmai Rasool seemed the most comfortable with the current system. Noting that Afghanistan currently has a presidential system, he suggested that parliamentary systems have some advantages – although he did not discuss them. He expressed concern, however, that an effective parliamentary system in Afghanistan would use party list voting (presumably because it would allow for proportional representation). Unfortunately, Afghanistan has traditionally had very weak political parties. Thus, although some members on the constitutional drafting commission had called for a parliamentary system elected through party list proportional representation, this was not adopted. He expressed hope that political organization would permit such a system eventually to emerge. Until that occurred, however, he favored maintaining a presidential system. When it came to the question of whether he was in favor of a “centralized or decentralized regime,” Dr. Rasool responded that Afghanistan is not prepared for constitutional federalism yet. He argued, however, that the state can and should devolve power and resources to the provinces because the provinces understand the challenges that they and their local population are facing and thus they can prioritize their policy initiatives and design them more efficiently. He characterized this as a system of “political centralization but economic decentralization.” What this meant in practice was not clear.

Dr. Ashraf Ghani was far less sanguine and far more specific about what he would do. He emphasized that his proposals would not require any constitutional change to the structure of government. He seemed to be insisting that with changes to Afghan leaders’ philosophy of governance and changes to its internal operating procedures, the system could work well. He asserted that the power currently vested in the hands of the President should be distributed both to specialized agencies within the executive branch and, where appropriate, to regional bodies that could develop policies tailored to the needs of their region.

First, Dr. Ghani asserted that the power of the presidency should no longer be concentrated around the person of the president but instead around a carefully constructed institution of the executive branch. He implicitly criticized the balkanized nature of governance and argued that Afghanistan needs to revise the system in which executive power is delegated on an ad-hoc basis to politically powerful figures who are appointed to a cabinet, build large ministries that operate independently of the ministries controlled by their political rivals, and use their ministries to pursue their own interests. Thus, he would take some of the power currently exercised by the president’s cabinet and allocate it to what is, in essence, an independent, professional bureaucracy. Specifically, significant policy-making power that is currently in the hands of the cabinet should be allocated to a National Council of 500 experts who would coordinate their policies in consultation with sub-councils. The National Council would be required to operate in an efficient and transparent fashion. The cabinet ministers would then mediate between the president, the National Council and the people. Such a system would not only improve efficiency and transparency, he suggested, but would allow for smoother transitions of power from one president to another.
Second, Dr. Ghani suggested that the national executive should leave regions free to tailor national policies to local needs. Thus, he proposed allocating 40% of the national budget to provincial organs. Only in the fourth year of his presidency would he want to convene a national convention (a “Loya Jirga”) to decide whether it made sense to engage in constitutional reform.

On hearing Dr. Ghani’s answer, the moderator pressed Dr. Ghani on the question of whether, in the long run, devolution made sense for Afghanistan. He noted Afghanistan’s Presidential candidates each run on a ticket with two vice presidential candidates and that Dr. Ghani’s running mates had in the past called for Afghanistan to adopt a federal system. Did Dr. Ghani agree with them? Dr. Ghani responded that whenever people participate in governance it promotes transparency and efficiency. He agreed that by statute or executive order some policy-making power should be transferred to the local administration. Nevertheless, some decisions, such as nationwide economic projects, require decisions at the level of the central government, so his administration would reserve that power to the central government.

While Dr. Ghani championed the strengthening and re-organization of the executive branch, Dr. Abdullah Abdullah proposed that the Constitution’s amendment procedures be invoked to move Afghanistan to a parliamentary form of government. Like Dr. Ghani, Dr. Abdullah suggested that this should be accompanied by statutory devolution and argued that if one combined proper governmental reform (like the establishment of a parliamentary government) with the devolution of some power, there would be no need for a constitutional amendment to make Afghanistan a federal state.

The moderator suggested to Abdullah that one of the fundamental concerns since the adoption of the 2004 Constitution has been the relationship between the parliament and the executive. The moderator then asked, “do you believe in the responsibility of the executive to the representatives of the people in the parliament?” In short, he was asking whether Afghanistan should move to a Parliamentary system in which the executive serves only so long as he has the consent of the parliament. Abdullah answered that the government should, indeed, be responsible to the parliament and made clear that he supports amending the Constitution to establish parliamentary supremacy.

Abdullah decried the fact that Afghanistan has moved from a culture in which decisions and consultations were resolved in a cabinet or a national security council to a culture in in which one person decides the destiny of a nation. (In so doing, he may have been referring to the refusal of President Karzai to sign the Bilateral Security Agreement with the US.) He insisted that the cautious view put forward by his opponents (i.e., to let political parties emerge before thinking about a parliamentary system) has doomed Afghanistan to be ruled by the whims of a single person. Implicitly, however, he seemed to accept that this system would only be an improvement if Afghanistan took steps to strengthen its political parties. If a parliamentary system is coupled with strong political parties, he suggested one would see a new culture of coalition building in the parliament and thus of power sharing that would lessen tensions between the regions, disfavored communities and the center.

Abdullah seemed implicitly to suggest that bringing local power into the government might lessen the need for devolution – although it would not eliminate the need for at least some devolution. Abdullah made a point to stress that he is not in favor of amending the constitution to create a constitutionally federal state. He is, at most, in favor of statutory devolution of local power to the provinces in addition to introducing a parliamentary system through constitutional means. And he insisted that this would be limited.

The moderator followed up by asking Abdullah why is there such sensitivity with respect to this issue [of changing the structure of the Afghan state]? Pointing his finger at the other candidates, Dr. Abdullah answered that some do not believe in the values he does. As soon as discussions about a parliamentary system begin, his opponents assume that such a change would lead to the dismemberment of Afghanistan. But he insisted that this is not true. Afghans, he insisted can (and should) empower the regions within a formally unitary system. Recognizing that Afghans’ biggest complaint about their government is corruption, he argued that devolution would help in combating corruption. Power sharing will allow people to have better oversight.

Concluding Thoughts

Afghanistan today faces the enormous challenge of transitioning form one democratically elected president to another democratically elected president for the first time in its history. The campaigns have been marred by violence, and even if all goes as well as possible, these elections will be far from perfect. Flawed as they will inevitably be, however, the elections will be impressive testaments to the gradual maturation of politics in Afghanistan. It is hard not to be struck by the vigor with which candidates have campaigned and the energy with which the Afghan media has pushed the frontrunners on questions of policy. Candidates are not campaigning solely on charisma, but also on questions of policy and, ultimately, on very different visions of the Afghan government. A broader range of Afghans than most people expected are engaged with questions of constitutional design and some may be willing to consider quite dramatic overhauls of government structure – so long as that guarantees better governance.

While the candidates disagree about how much the Afghan government needs to be restructured and about what type of restructuring makes the most sense, all three trumpet their commitment to the ideal of a unitary state. Those who favor significant governmental reform along with devolution argue that their plans will obviate the need for constitutional federalism. Consensus apparently exists that improving Afghan governance depends upon establishing not just a more transparent, but also a more inclusive government. People apparently agree that Afghanistan needs a government sensitive to the different needs and desires of the people in different regions. At the same time, however, the public apparently resists the idea of constitutional federalism or, indeed, of anything that might empower separatist movements. The candidates’ professed twin commitment to both regional sensitivity and territorial integrity is impressive and hopeful. At a time in which there are armed revolts against the government, all the leading candidates are campaigning to be the heads of a diverse but united Afghanistan.

Yet questions remain as to whether any candidate would actually try to implement the changes that he promises or, if he did, whether he could successfully do so. And, if any candidate successfully imposed the reforms he proposes today, it is unclear whether they would have all the beneficial effects that the candidate hopes.

Nevertheless, the fact that the election debates have concentrated on concrete issues of governmental structure and procedure suggests that Afghans are vested in the project of good governance. They are publicly debating and considering quite different reforms. Regardless of who wins the presidency, there will be considerable domestic pressure to do something. Afghanistan’s next government may be prepared to embark upon more extensive changes than outside observers realize.

Suggested citation: Clark B. Lombardi & Shamshad Pasarlay, Might Afghans Amend The 2004 Constitution? Hints from a Televised Presidential Debate, Int’l J. Const. L. Blog, available at: http://www.iconnectblog.com/2014/04/might-afghans-amend-the-2004-constitution-hints-from-a-televised-presidential-debate/

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Published on April 3, 2014
Author:          Filed under: Developments
 

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