Fragile Constitution

Afghanistan's constitution a model for Iraq's? Expect delays.

Wed Nov. 5, 2003 3:00 AM EST

Two years after the United States bombed the Taliban out of power and set Afghanistan, it was hoped, on the path to democracy, interim Iraqi officials on Monday unveiled the first draft of an Afghan constitution. The drafting process, which involved missed deadlines, technical hitches, stubborn disagreements, and near-constant wrangling among interested parties over the wording and spirit of the document, could provide a model for drawing up an Iraqi constitution. In which case, the likelihood of a swift exit for the United States, or a smooth transition to democracy for Iraq, are slim indeed.

Advertise on MotherJones.com

The very existence of the draft is a triumph of sorts, but it's not clear that enough Afghans will accept it, at least not in its present form. In an attempt to please both progressives and conservatives, the document tries to strike a balance between Western rights and liberties and Islamic traditions, with the result that nobody is fully satisfied.

The Afghan constitution calls for a strong president, a vice president, and two houses of congress. a la U.S.A. Unlike the U.S. though, the Afghan document has its basis in Islam. The country will be formally renamed Islamic Republic of Afghanistan. The draft states: "In Afghanistan, no law can be contrary to the sacred religion of Islam and the values of this Constitution." This comes as no surprise, since conservatives pushed for, and got, assurances that Afghanistan wouldn't be a secular state.The real test for the draft is the loya jirga, or Grand Council, to be held in December, where the elected council members will determine whether the constitution will be approved. Under the Bonn Agreement set up by the UN in 2001, elections will ideally follow in June of 2004.

One of the most contentious aspects of the document is its silence on the roles of men and women. While it doesn't call for sharia law -- under which the Taliban forced women under a physical and metaphoric veil -- it doesn't specify many concessions for equality of women either (although it does say that 50 percent of members of the lower house must be women). The Economist suggests that the inclusion of Islam in the constitution, along with the omission of the sharia, is reason for hope:

"Such overt references to Islam may alarm some in Washington. But in a traditionally religious country that houses a patchwork of different ethnic groups, devotion to Allah is a rare unifying force-and the omission of sharia law shows some resistance to religious conservatives."

Afghanistan has a long way to go before the draft will become reality. The interim government, headed by President Hamid Karzai, holds power tenuously, at best, outside of Kabul. The dominance of warlords threatens democracy and although warlords have been barred from participating in the loya jirga, they still use their influence to tamper with the elections for delegates.

The Financial Times, in an editorial, takes a wary view of progress in Afghanistan, saying that "the US and its allies are not really engaging with what easily could again become a formidable pole of instability - a shell state at the most volatile crossroads in the world." Absent such engagement, "milestones such as yesterday's publication of a new draft constitution will be academic. And the war on the Taliban might as well never have happened."

In Iraq, too, a constitutional committee is preparing to get started, and the United States, under increasing heat to find an exit strategy, hopes it will make swift progress. But the process promises to be at least as difficult as in Afghanistan, as a U.S. News and World Report article notes:

"In fact, Iraq is having trouble getting past the first step: deciding how to select the drafters. A leading Shiite cleric has declared that they should be elected, a time-consuming process requiring a census. Masoum's committee spent six weeks holding town meetings and debating options, including simply appointing drafters. Its final recommendation: Hold an election, even though it may delay a new government until 2005. Otherwise, a constitution written under occupation may appear illegitimate."
And the piece goes on to quote an Afghan guerilla fighter, who says,"If the writing of the constitution is delayed, the election [of a new government] will be delayed along with the sovereignty of Iraq. It will delay the withdrawal of the Americans even further."

This seems more than likely. The Washington Post reports:

"The dispute [over the composition of the drafting committee] also has become the first major test of whether Iraq’s fractious religious and ethnic groups will be able to form a stable, united government.

Some involved in the issue suggest they will face even stiffer battles when issues like federalism and the rights of women are addressed at the convention. Iraqi political leaders said even forging a compromise could take months longer than the administration wants."

And a constitution isn't the half of it. Under a plan set forth by L. Paul Bremer, Coalition Provisional Authority, establishing a constitution is the fourth step in a seven part process to establishing a government. Ratifying a constitution, electing a government, and gaining full authority are the last three steps. In a speech on September 5 to the Iraqi people, Bremer said that Iraq was on step three: beginning to run a country.

But getting to that next level, creation of a constitution, is no easy task. When a constitution is at stake, political issues are magnified ten-fold. Bruce Fein writes in an article in the Washington Times from Oct. 21:

"In countries like Iraq where a first election may be the last election, every comma, colon and semicolon are fought over like a battle between life and death. The customary difficulties of compromise climb. Fears and distrust defeat hope. Statesmanship is risky."

The Bush administration desperately wants to get the constitution framing process rolling in time for the elections -- the U.S. elections, that is. Secretary of State Colin Powell has set out a goal of achieving an Iraqi constitution in six months, but many say this is just wishful thinking. Fein writes:

"These delusions are fueled by the hope of shrinking the United States military presence and casualties in Iraq before the 2004 presidential election. The fractious 24-member IGC, however, is incapable of fashioning a viable constitution in six months or at any time."