This year marks the 10-year anniversary of Afghanistan’s constitution.  Drafted in the wake of the 2001 fall of the Taliban and the December 2001 signing of the Bonn Agreement that began the rebuilding of the country’s institutions, the charter articulates the central vision for the establishment of a state underpinned by the rule of law. 

USIP has supported a constitutional analysis project since 2013 with the Afghanistan Research and Evaluation Unit (AREU), an independent policy research institute in Kabul. AREU last month published the first major study of the 2004 Afghan Constitution, “Afghanistan’s Constitution Ten Years on: What Are the Issues?” authored by Kamali. He has advised the UN on constitutional issues in countries around the world and written on subjects such as how Islam relates to science or finance.

USIP’s Dang, a lawyer based in Kabul who oversees USIP’s rule-of-law research and programs in Afghanistan, spoke with Kamali this month about his views on the constitutional implications of the current electoral impasse and proposed unity government. Their Sept. 7 conversation is edited for brevity and clarity here. A full transcript is published as an annex to the paper “Afghanistan’s Constitution Tens Years on: What are the Issues?”

LD: The 2014 presidential election has resulted in a political impasse with the two final candidates in talks over a proposed “unity government.”  What are the key considerations that should guide the division of executive power within such a structure to ensure a stable, constitutional government?

MHK: We do not have precedent of this kind in Afghanistan of a chief executive in a presidential structure. As negotiations are ongoing, there is a lot of uncertainty, and I am not sure what the categorical responses should be.  I recognize that the proposed chief executive position is an ad hoc development, and a stop gap formula for addressing the presidential tussle. There is no constitutional support for the chief executive position unless the constitution is amended.

The problem is you cannot have two executives. The existing constitutional framework is clear on the terms of the executive. The chief executive can have delegated authority on behalf of the president. The chief executive cannot take decisions without concurrence of the president.

The other issue is that the president must remain the commander in chief of the army. The president can issue instructions to the chief executive, and the chief executive is bound by mandate to help and assist the president. The chief executive does not hold powers of his own. Unless we recognize that, we will have chaos.  

However, if we are talking about a unity government, then we should recognize that it is a means to power-sharing, where there is give and take. Perhaps a structure can be nominally set up -- similar to France or Russia -- of a powerful president and a prime minister or chief executive. Another example would be Turkey, in which the chief executive heads the cabinet, but the decision of the cabinet must be approved by the president.  This has been a workable solution in Turkey, which recently changed from a symbolic presidential to an executive presidential system. However, the Turkish president has been able to pick his prime minister, and the two are working well together. There is a sense of trust and togetherness. I don’t see it here in Afghanistan, but from the frequent meetings and consultations the two candidates  have had, perhaps they  have now developed some insights into one another and how they  may be able to work together.     

LD: If there is disagreement between the president and the hypothetical chief executive, how should it be resolved to ensure the stability of the existing constitution.

MHK: The constitution cannot always guide you every step of the way. It is about working with the principles of the Constitution and finding a feasible solution. After the president is inaugurated, there should be a spirit of agreement on both sides, and a clear idea of what commitment the new president has made to the nation. He needs to abide by that, and find a modality for working with the chief executive.  Before this can happen, both candidates will need to accept the result and the mandate provided by the election. We need to be able to tell who is clearly in charge. The other person must recognize he has lost and he is not the president.

To prevent disagreement, it is important to recognize that the chief executive is not independent. He cannot make executive decisions; he can only implement decisions the president makes and approves or cabinet positions that are arrived at by consensus.

The challenge is how to use a chief executive who does not have a constitutional mandate. The combination of power between the president and the prime minister has to have constitutional limits.  The demand for more power cannot go on and on.  Such a trajectory opens a new door to fresh conflict.  I think it is not very wise to bring a chief executive into a presidential system.  I recognize there is a need to accommodate the political situation. 

If at some point in time, the president and the chief executive cannot agree, then they need to decide if they can still work with one another.  If there is no agreement, then it occurs to me there are provisions in other Islamic countries which allow for arbitration.  This involves calling upon five to seven chief justices of other Islamic nations to arbitrate the dispute. If we had a constitutional court, that would be an appropriate forum to address disagreements.  As I discussed in my paper, the authority for constitutional interpretation remains ambiguous.

LD: If the constitution needs to be amended in the coming years—either to address the immediate political impasse, or to change the system of government—what are the challenges to making these amendments a reality without sacrificing the constitution itself?

MHK: If we keep the chief executive, than it becomes a matter of urgency, to prevent further instability, to address constitutional amendment. To do that, a Loya Jirga needs to be called. This should be done in accordance with the provisions of the Constitution.

What President Karzai did in the past in calling consultative jirgas was extra-constitutional. By doing so, parliament felt that they were being bypassed. The Loya Jirga should be called when parliament is in session.

Once the pieces are in place, the Loya Jirga is not a difficult process. How to manage the agenda should be the first consideration. It should be made very clear the purpose of the Loya Jirga, and what issue needs to be decided, nothing more and nothing less. A chairman is also needed for the Loya Jirga. It should be someone younger, who is well-educated and well-qualified. A younger chairman will be better placed to understand the issues and manage the technocratic aspects of the process.