Drawing on the comparative experiences of governments negotiating with insurgencies in the Philippines, Myanmar, and Colombia, as well as a detailed examination of the Taliban’s possible constitutional demands, this report examines the 2004 Afghan constitution with respect to its potential inclusion in peace talks between government and Taliban leaders. It argues that, if the issue is handled carefully and with strategic intent, the Afghan government may be able to seize the political high ground by challenging the Taliban to justify some of its more unpopular constitutional positions to other Afghans.

Summary

  • Insisting that the Taliban accept the Afghan constitution is understandable insofar as the risks that peace talks could pose to Afghanistan’s post-2001 achievements. Nonetheless, a periodic assessment of this condition is healthy, especially given the human toll of the ongoing insurgency and acknowledged shortcomings in the charter.
  • To help Afghans make an informed choice on this dilemma, lessons can be drawn from other countries currently in talks to end decades-long insurgencies. Understanding the Taliban’s possible constitutional demands as well as the Afghan constitution’s amendment rules is also necessary.
  • A comparison of the Afghan constitution and the Taliban’s 2005 Order of the Islamic Emirate provides clues on what changes the movement might seek. The Taliban also have an overarching “ownership problem” with the constitution because of their exile from Afghan political life at the time it was drafted.
  • Key divergences between the Taliban order and the constitution relate to the sources of legitimacy for government and laws and marked differences on women’s and minority rights. The two documents also contain more overlap than might be assumed.
  • The Afghan constitution requires public input on proposed amendments through the convening of a popular assembly, or loya jirga. The constitution further designates fundamental aspects of the political system and Afghans’ rights as unamendable. These rules could be strategically applied to constrain Taliban efforts to use negotiations to completely remake the current constitutional order.
  • Debate over peace talks with the Taliban has tended to be framed in terms of potential risks. Negotiations could also present an opportunity to challenge the Taliban to justify some of its more unpopular constitutional positions to other Afghans and, in the best case, to help the Afghan government seize the political high ground.

About the Report

This report examines the 2004 Afghan constitution as a point of negotiation in a prospective conflict settlement process between the Afghan government and the Taliban. Because changes to the constitution’s core principles are frequently cited as a major risk of a potential peace process, the report seeks to examine various ways in which Afghans might approach the issue.

About the Author

Sean Kane worked on elections and reconciliation related issues for the United Nations Assistance Mission for Afghanistan from 2012 to 2014. He has also worked on issues of constitutional reform in Iraq, where he helped advise the Iraqi parliament on its 2006–07 constitutional review, and in Libya, where he facilitated discussion among representatives of twenty-six towns on the constitutional drafting process. The report was written by Kane in his personal capacity; any errors or factual inaccuracies are solely his responsibility, and the views expressed are those of the author and do not necessarily reflect those of the United Nations or any other organization. He thanks Nicholas Haysom, Joanna Nathan, Jason Gluck, and the United States Institute of Peace (USIP) for their helpful comments.

Related Publications

Moscow Concert Hall Attack Will Have Far-Reaching Impact

Moscow Concert Hall Attack Will Have Far-Reaching Impact

Wednesday, March 27, 2024

By: Mary Glantz, Ph.D.;  Gavin Helf, Ph.D.;  Asfandyar Mir, Ph.D.;  Andrew Watkins

On Friday, terrorists attacked the Crocus City Hall outside Moscow leaving 140 people dead and 80 others critically wounded. Soon after, the Islamic State claimed responsibility for the attack. The terrorist group, which is headquartered in Iraq and Syria, has several branches, including in South and Central Asia. Press reports suggest the U.S. government believes the Afghanistan-based affiliate of the Islamic State, ISIS-Khorasan (ISIS-K), was behind the attack. The Biden administration has publicly noted that it had warned the Russian government of the terrorism threat in early March in line with the procedure of “Duty to Warn.”

Type: Analysis

Global Policy

The Challenges Facing Afghans with Disabilities

The Challenges Facing Afghans with Disabilities

Thursday, February 29, 2024

By: Belquis Ahmadi

In Afghanistan, obtaining accurate data on the number of persons with disabilities — including gender-disaggregated information — has always been a challenging endeavor. But based on the data we do have, it’s clear that more than four decades of violent conflict have left a considerable portion of the Afghan population grappling with various forms of disabilities, both war-related and otherwise. And the pervasive lack of protective mechanisms, social awareness and empathy surrounding disability continue to pose formidable challenges for individuals with disabilities, with women being disproportionately affected.

Type: Analysis

GenderHuman Rights

What to Expect from the Doha Conference on Afghanistan

What to Expect from the Doha Conference on Afghanistan

Thursday, February 15, 2024

By: Kate Bateman;  Andrew Watkins

On February 18-19, United Nations Secretary-General Antonio Guterres will convene a meeting on Afghanistan in Doha to discuss the ongoing humanitarian and human rights crises and the recent report on a way forward by U.N. Special Coordinator for Afghanistan Feridun Sinirlioğlu. Special envoys from U.N. member states and international organizations will attend; representatives from Afghan civil society, women’s groups and Taliban officials have also been invited. The conference is a critical, high-level opportunity for donors and the region to chart next steps on how to improve the situation in Afghanistan and engage with the Taliban regime.

Type: Question and Answer

Global Policy

The Latest @ USIP: U.N. Engagement in Afghanistan

The Latest @ USIP: U.N. Engagement in Afghanistan

Wednesday, December 20, 2023

By: Kanni Wignaraja

While some parts of the Afghan economy managed to stabilize in 2023, poverty continued to increase and now stands at 69 percent of the population. Kanni Wignaraja, director for Asia and the Pacific at the U.N. Development Programme, discusses UNDP’s efforts to build resilience in local markets and promote women-owned enterprises in Afghanistan; explores ways to navigate relations with the Taliban; and examines how the decline in international aid is affecting humanitarian efforts in the country.

Type: Blog

EconomicsHuman Rights

View All Publications