Role and Future of the Afghan Constitution in Reconciling with the Taliban

By Amin Tarzi
Submitted to Session P5076 (Constitutions in the Contemporary Middle East: (How) do they still matter?, 2018 Annual Meeting
Intl Rltns/Aff
The common thread among the multiple reconciliation efforts and negotiations underway to persuade the Taliban Islamic Movement to stop their armed opposition and join the political system in Afghanistan is to endeavor to abide by the Afghan constitution. After briefly reviewing Afghanistan’s constitutional journey that began with that country’s first draft constitution in 1923 and the evolving role of religion throughout, in this paper I argue that there are two problematics using the constitution as the mechanism to bring the Afghan government and the Taliban into a peaceful coexistence. First, the current National Unity Government based on a 2014 expediency arrangement is extraconstitutional and two years past its provisional mandate, rendering the constitution a weak and malleable document. Second, should the Taliban accept the constitution as it stands, there is a clause therein (Article 3) that would allow them to legally challenge all laws in the country based on how they and their supporters enact Islamic rules. The 2004 constitution drafters’ use of this preemptive symbolic language—placed therein as another last-minute expediency measure to push through a presidential system of government—has the potential of turning the country’s budding freedoms and social progress backwards and doing so within the legal boundaries of the country’s fundamental laws. In the paper, I will discuss two specific cases involving the application of Article 3 that elucidate the ambiguity inherent in the text of what constitutes Islamic beliefs and to whom and the challenge that lack of definitiveness presents to the current context in Afghanistan. The embattled constitution remains the formal glue keeping the ethnically divided country together and the guide moving it forward. Yet the government violates provisions enshrined in the constitution, in part simply by its existence, and if accepted as is and enacted by all parties, it would potentially undermine current progress. I will conclude the paper addressing the panel’s overarching theme of constitutional relevance in contemporary Afghanistan.