Simone Lawson
Afghanistan has had a tumultuous history, with various constitutions being instituted and overthrown. The most recent constitution of Afghanistan was ratified in 2004, following the overthrow of the Taliban by US-led forces in 2001. The 2004 constitution was designed to take into account the social, political, and religious dynamics of the country and established an Islamic Republic with Islam as the national religion. It also included provisions for human rights, freedom of expression, and political representation for women. However, the ratification process was marred by allegations of political intimidation, vote-buying, and corruption, with warlords and local factions dominating the process. This article will explore the complex ratification process of the Afghanistan Constitution and the subsequent impact on the country's political landscape.
| Characteristics | Values |
|---|---|
| Ratification date | 4 January 2004 |
| Type of government | Unitary presidential Islamic republic |
| Legislative authority | National Assembly (bicameral legislature) |
| Lower house | House of the People (250 members) |
| Upper house | House of Elders (102 members) |
| Election cycle | Presidential and parliamentary elections every five years |
| Human rights provisions | Yes |
| Freedom of expression and the press | Permitted and promoted, with some limitations |
| Recognition of Islam | Recognised as the national religion |
| Commitment to Universal Declaration of Human Rights | Yes |
| Pledge to fight terrorism and narcotics | Yes |
| Education rights | Education is a right to be provided free of charge by the State |
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What You'll Learn
The 2004 Constitution
Afghanistan has had a tumultuous history with its constitution being rewritten several times. The country's first constitution was instituted in 1921, followed by another in 1923, and then again in 1931. In 1952, religious conservatives rose to power and in 1964, the Grand Assembly passed a new constitution that established a constitutional monarchy and a bicameral legislature.
In 2001, the Taliban's refusal to extradite Osama bin Laden, the leader of al Qaeda, triggered an American and allied invasion of Afghanistan. This resulted in the overthrow of the Taliban and the establishment of a transitional government under the leadership of Hamid Karzai. Following this, a constitutional drafting commission was charged with writing a new constitution for the country.
On January 4, 2004, the Afghan National Assembly ratified the new constitution, which was designed to take into account the social, political, and religious dynamics of the country. The 2004 Constitution established Afghanistan as an Islamic Republic, recognizing Islam as the national religion. It also committed to the Universal Declaration of Human Rights, pledged to fight terrorism and narcotics production, and guaranteed freedom of expression and the press as long as it did not threaten national or religious integrity.
Despite these advancements, the constitution-drafting process was marred by abuses, including political intimidation, vote-buying, and the dominance of warlords and factional leaders. This raised concerns about the country's ability to hold free and fair elections.
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Human rights and women's representation
Afghanistan's constitution-making process has been a long and tumultuous journey, with various constitutions being instituted and overthrown throughout history. The country's constitutional history has been heavily influenced by foreign powers, religious ideologies, and internal political struggles. While the focus here is on human rights and women's representation, it is important to acknowledge that the ratification process of the Afghan constitution has been complex and often interrupted.
The most recent constitution of Afghanistan was ratified by the Afghan National Assembly on January 4, 2004. This constitution was drafted following the overthrow of the Taliban regime by US-led forces in 2001. The constitutional drafting commission was tasked with creating a constitution that took into account the country's social, political, and religious dynamics, and it established Afghanistan as an Islamic Republic.
This 2004 constitution included several provisions related to human rights and women's representation. Firstly, it committed Afghanistan to the Universal Declaration of Human Rights, which sets out a broad range of rights and freedoms for all humans, regardless of gender. Additionally, the constitution provided for the establishment of a bicameral legislature, consisting of the House of the People and the House of Elders (also known as the Wolesi Jirgah and Meshrano Jirgah, respectively).
The House of the People, or lower house, is an elected body with 250 members chosen through direct elections for five-year terms. This house has the power to question ministers, approve appointments, and pass and modify legislation, including on issues of development and the state budget. The upper house, the House of Elders, consists of 102 members appointed by the President or elected from local councils for terms ranging from three to five years. While this house has less direct power, it plays a crucial role in advising and consenting to certain appointments and legislative decisions.
In terms of women's representation, the constitution did not specify any quotas or guarantees for female representation in either house. However, it did provide for universal suffrage, meaning that women had the right to vote and stand for election. Despite this provision, the progress made for women's rights following the 2001 US-led intervention was quickly eroded after the Taliban regained control in 2021.
Under the Taliban regime, women's rights and freedoms have been severely restricted. Women are no longer allowed to work or attend university, and they face oppressive dress codes and restricted freedom of movement. They have been excluded from political participation and marginalized from accessing public services and humanitarian assistance. Additionally, women-led households have been plunged into poverty due to the Taliban's restrictions on women's financial independence.
Despite these challenges, women's rights activists in Afghanistan continue to courageously stand up for their rights and support each other. Organizations like Medica Afghanistan and Women for Justice are working to empower women and provide them with legal knowledge to fight for their rights within the framework of Islamic law. While the situation appears dire, these activists are determined to create positive change and uphold the human rights that are supposed to be guaranteed by Afghanistan's constitution.
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The National Assembly
Afghanistan's National Assembly is the country's highest legislative authority. It is made up of a lower house, the House of the People, and an upper house, the House of Elders. The House of the People is an elected body of 250 members, each serving a five-year term. The House of Elders, on the other hand, has 102 members who are either appointed by the President or elected from local councils, serving terms ranging from three to five years.
The 2004 Constitution, which established an Islamic Republic, was ratified by the National Assembly. This constitution was drafted by a constitutional drafting commission following the overthrow of the Taliban by US and allied forces in 2001. The new constitution recognised Islam as the national religion, committed to the Universal Declaration of Human Rights, and pledged to fight terrorism and narcotics production. It also guaranteed freedom of expression and the press, as long as it did not threaten national or religious integrity or defame individuals.
The 2004 Constitution also made provisions for better political representation of women, with approximately 25% of seats in the House of the People reserved for women, and the president being obligated to appoint additional women to the House of Elders.
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Historical context
Afghanistan's constitutional history is marked by numerous attempts to institute democratic structures, often in the face of foreign intervention and domestic instability.
Following the two Anglo-Afghan wars in 1839 and 1878, the British invaded Kabul in 1837 due to fears of Prussian and Russian influence in the region. Afghanistan became a buffer zone between Russia and British-occupied India, achieving independence only in 1919 under the Treaty of Rawalpindi. The country's first years of independence were tumultuous, with King Amanollah instituting constitutions in 1921 and 1923, only to be deposed in 1929 by Tajik rebels. A new constitution was passed in 1931, and in 1947, Prime Minister Shah Mahmud introduced free elections, a free press, and a parliament.
In 1952, a coalition of religious conservatives came to power during a time of Cold War tensions. The national parliamentary body, the Grand Assembly, passed a new constitution in 1964, creating a constitutional monarchy and a bicameral legislature. However, Afghanistan's political landscape continued to be fraught with challenges, including the rise of the Taliban and the country's involvement in the Soviet-Afghan War from 1979 to 1989.
In the aftermath of the September 11, 2001 attacks, the United States and its allies invaded Afghanistan, overthrowing the Taliban's first government. This led to the formation of a transitional government under Hamid Karzai and the drafting of a new constitution. On January 4, 2004, the Afghan National Assembly, dominated by warlords and factional leaders, ratified the new constitution, establishing an Islamic Republic. This constitution recognized Islam as the national religion, committed to the Universal Declaration of Human Rights, and included provisions for freedom of expression and the press, as well as better political representation of women.
Despite these advancements, Afghanistan continued to face significant challenges, including ongoing Taliban insurgency, government corruption, and economic struggles. The country's democratic structures and constitution would be further tested in the years to come, with the Taliban regaining control of Afghanistan in 2021.
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The Taliban's impact
The ratification process of the Afghanistan Constitution has been a lengthy and tumultuous journey, with the country witnessing various regimes and external influences. The Taliban's impact on this process has been significant, especially with their strict interpretation of Islamic law and their commitment to establishing an Islamic Emirate.
After the Taliban's refusal to extradite Osama bin Laden following the September 11, 2001 attacks, American and allied forces invaded Afghanistan in November 2001, overthrowing the Taliban regime. This led to the formation of a transitional government and a constitutional drafting commission, tasked with creating a new constitution. The Taliban's previous rule from 1996 to 2001 was marked by human rights abuses, particularly the exclusion of women from public life and education.
The 2004 Constitution, ratified by the Afghan National Assembly, established an Islamic Republic and recognized Islam as the national religion. It also committed to the Universal Declaration of Human Rights and pledged to combat terrorism and narcotics production and trafficking. However, the Taliban's influence remained a concern, and they swept back into power in August 2021, promising a more tolerant and inclusive approach.
In September 2021, the Taliban announced their intention to temporarily enact select articles from the 1964 constitution, specifically those not conflicting with their interpretation of Islamic Sharia law. The 1964 constitution, enacted by then-King Shah, had enabled a decade of parliamentary democracy before his overthrow in 1973. The Taliban's acting minister of justice, Abdul Hakeem Sharaee, assured that international laws and instruments not conflicting with Sharia law would also be respected. However, concerns about women's rights and their exclusion from governance have persisted, with the Taliban's male-only caretaker cabinet facing criticism.
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Frequently asked questions
The National Assembly is the highest legislative authority in Afghanistan. It is divided into a lower house, the House of the People, and an upper house, the House of Elders.
The ratification process of the Afghanistan Constitution involved a constitutional drafting commission that was charged with writing a new constitution for the country. On January 4, 2004, the Afghan National Assembly ratified the new constitution, which established an Islamic Republic.
The 2004 Afghanistan Constitution recognizes Islam as the national religion, commits to the Universal Declaration of Human Rights, pledges to fight terrorism and narcotics production, guarantees freedom of expression and the press, and mandates better political representation of women. It also establishes a presidential system with both presidential and parliamentary elections held every five years.
Human Rights Watch reported political intimidation, vote-buying, and an atmosphere of fear and corruption during the convention. There were also concerns about the domination of the approval process by warlords and factional leaders, which raised doubts about the country's ability to hold free and fair elections.
