Afghan Constitution an Exercise in Nation Building
A Test in Social Organization

By: Dr. G. Rauf Roashan


Objectives of the Nation Building Exercise
The Jirga
Brave Afghan Women
Important Figures Outside the Jirga
The Father of the Nation
Test Results


It is possible to cut and twist and paste, with some changes, democratic constitutions of the Western World into national documents of the so called third world countries in an exercise for nation building there especially when they are devastated by war, intrigue, internal chaos and international intervention. The process of cut and twist and paste could then be called an exercise in nation building. What follows are proceedings of testing of the above hypothesis.

Objectives of the Nation Building Exercise:

One of the most interesting social organization tests was conducted on Afghan soil, under a huge tent on the grounds of a higher education institution's campus in Kabul for three weeks. The results of the test were of utmost importance to the social and political well being of Afghanistan. They were also meant to set standards for similar procedures elsewhere in the third world countries where Western interests and influences were concerned. Therefore, the world political machinery as well as students of political science and Afghanistan's friends and foes alike, closely watched the proceedings of the test and the conditions under which it was conducted.

This paper is an effort to record for the study of the students of politics as well as for posterity the different aspects of the procedures adopted for conducting of the test measuring adoptability of Western style democracies in third world countries. The test was also to find out compatibility or otherwise between what is considered as civil values of Western civilizations and those of the sacred religion of Islam.

Furthermore, in the conduct of the test individual politicians or groups as well as interested international powers used all the tools of politicking in a search for means to grasp or maintain power or safeguard their interests.


The test would include drafting of a new constitution, amending of the draft and presentation of the same to an old social institution in Afghanistan called Loya Jirga. This Loya Jirga would be called the Constitutional Loya Jirga and would consist of the choices for representatives of an electoral college in 32 provinces of the country. The size of the Electoral College ended up being 19000. The actual test was conducted with the participation of 502 delegates chosen by the Electoral College and Afghanistan's president of the Transitional Government. Some semblance of democratic process would be observed and recorded. This would show that the nation had participated in the experiment.


In preparation for the test, a small committee of eight people selected by the United Nations, were entrusted with the compilation of a draft constitution for a new Afghanistan founded after the world's mightiest power bombed down and toppled the world's harshest regimes of Taleban in Afghanistan. The Big Brother, the United States, immediately pledged helping the country to re-establish as a democratic state and to emerge as a peaceful country on the way to reconstruction and prosperity.

The small committee worked diligently and copied for the most part articles from an older constitution of the country namely the Constitution of 1964 of the era of monarchy, subtracted or changed the chapter on the person and authority of the Monarch but assigned most of the monarchical privileges to a president.

The head of the country's transitional government then assigned a larger committee of more than 35 people to review the first draft and institute changes, as needed making the document presentable to a Grand National council called Constitutional Loya Jirga. This second draft was studied by the head of the transitional government who was hopeful of remaining in power as the first elected president in June of 2004.

The commission worked on the draft, introduced minor changes and sought views of the public on the draft. The method for seeking of the public input into the draft was unscientific, haphazard and unorganized. Still a formidable number of opinions were presented in tens of thousands of pages to the commission. It is not known how the commission reviewed these views and or how it promulgated those views in the draft. What is known is that the draft with no or very little change was presented to Hamid Karazai for his study and presentation to the Constitutional Loya Jirga.

Reportedly he further strengthened the part dealing with the powers of the president if the Jirga were to adopt the new constitution.

It was this draft that was presented to the Jirga as it started its deliberations on December 14, 2003 in Kabul. A major part was played by the United Nations and the United States helping make the Jirga possible and especially the United Nations in working diligently in making the selection of members of the Electoral College possible as well as working with a governmental commission to prepare the ground work for the proceedings of the Jirga.

In the selection of the Loya Jirga members, a great deal of politicking took place and many factions as well as so called parties including the transitional government used a variety of tactics in order to ensure selection of their supporters as Loya Jirga delegates.

Finally, as per procedures drawn by the United Nations and in order to ensure some degree of representation by women, it was decided that at least two women must be elected from each province and that another fifty percent of the delegates that were to be selected by the president should be women. The end result of this endeavor was selection of 100 women as part of the final 502-member Loya Jirga.

It is important to note that the person of the president and his advisors also included among the choices of the president for Loya Jirga membership, some of the powerful warlords perhaps either to appease them or win over sympathy of their supporters as to the plans of the government. One example was selection of the powerful warlord from Northern Afghanistan namely, Abdul Rashid Dostum to participate in the Jirga and who later proved an obstacle instead of a supporter to the president's program.

The Jirga:

As expected the Jirga began on December 14, 2003 under the giant tent donated for the purpose of the Emergency Loya Jirga of two years ago by the German government. The temporary leader of the Jirga was selected to be one of the Jihadi leaders and a religious figure Mr. Gailani. Under his leadership the Jirga was opened by a lukewarm speech delivered by the former King Zahir Shah and somewhat elaborate talk by the president of the transitional government. The former expressed fatherly hope for the success of the meeting while the latter pointed out to the so-called achievements of his government. Pretty soon afterwards few candidates were nominated to the presidency of the Loya Jirga. Among them was Mr. Sibghatullah Mojadedi one of the Jihadi leaders and the first president for two months of the Jihadi government that replaced the communist regime of Dr. Najibullah after the retreat of the Soviet forces from Afghanistan. Mohadedi, an elderly figure, familiar with power politics and considered a pro-western personality seemed the most acceptable to majority of the delegates and won over 252 votes almost 100 votes ahead of the second runner and thus became the president the Constitutional Loya Jirga. He is considered a moderate and a supporter of the present governmental set-up and thus his election was looked upon as a big boost to the position of Hamid Karzai the president of the transitional government.

It was then decided that the work of the Loya Jirga be carried out by smaller committees, ten in number, headed by the following:

  1. Burhanuddin Rabbani, former president of the Jihadi government
  2. Abdul Rasul Sayaf, leader of Itehad-Islami Jihadi group.
  3. Ahmad Nabi Mohammadi, the son of the late Mawlawai Mohammad Nabi Mhammadi, leader of the Harakat-e-Islami Jihadi group.
  4. Mohammad Tahir
  5. Ayatullah Mohsini, a Jihad Islamic group leader.
  6. Mawlawai Gul Mohammad
  7. Dr. Mashahed
  8. Ustad Farid, a former close confident of Gulbuddin Hikmatyar who had delegated him in his own place as the prime minister in the Jihadi government of Rabbani.
  9. Hashmat Ghani Ahmadzai, brother of the powerful minister of finance of Karzai's government
  10. Sayed Mohammad Hanif
    (For a detailed look at the list of participants, you may wish to go to and click on the list of members of the Loya Jirga.)

After looking at the list, any observer of the Afghan scene would have concluded that the committees dominated by the Jihadi elements with their past associations and affiliations and their present stands would lead the Jirga toward a purely Islamic Jihadi path.

Nevertheless, the committees apparently did a great job in a short time to review the assigned articles of the draft constitution and most of them reported within the given time to the Jirga leadership that they had accomplished their task. Only two committees took longer than usual in concluding their task.

But the result of these deliberations coupled with a few blunders by the Jirga leadership proved a big hurdle in the speedy conclusion of the work of the Jirga. The main areas of disagreement included major and minor points each intended to further a variety of ideologies of participants as individuals and as followers of groups, factions and parties. Some examples of the changes proposed to the draft presented to the Jirga are given below:

Article 1 of the draft referred to the religion of Afghanistan. The delegates added the words of: "the people and the state" in front of the word Afghanistan. Looking at this change you could imagine the depth of the ideological rift that reflected in the debates of the constitution.

Furthermore article 3 was modified by the Reconciliation Commission of the Jirga to add strength to the Islamic nature of laws in the country. This shows the concern about the problem of compatibility or otherwise of the civil laws with those of the Islamic Sharia. While the word Sharia was not used, some delegates found a remedy in the change in the wording from: " law can be contrary to the sacred religion of Islam and the values of this Constitution, to: In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam."

Article 4 was found controversial in its draft form in that while it referred to the nation of Afghanistan consisting of all individuals who are the citizens of Afghanistan, but did not qualify the term citizen to mean woman and man. This simple change, often felt to be unnecessary in civil societies where it is taken for granted that women and men both are equally the citizens of their nations, was considered a big victory for the women in Afghanistan whose rights have constantly been endangered by mainly male dominated social institutions.

A minor change was suggested to Article 7 about the issue of narcotics. The commission suggested a change from: "…production and smuggling of narcotics, to: production, consumption and smuggling of intoxicants."

The above examples were cited to show the intricacies and difficulties of working with the wording of a national document and the fact that the participants were thorough in their study of the draft and were ready to further their points of view. They showed that notwithstanding any amount of politicking, a democratic institution would remain democratic and would reflect the concerns of its participants.

While the reader is encouraged to study Professor Rubin's analytical notes on the issue,
(Professor Barnett R. Rubin of New York University and an avid observer of the Afghan Loya Jirga has worked out a detailed discussion of these points. Professor Rubin is also member of the Advisory Board of the Institute for Afghan Studies, IAS. For a study of his analytical notes dated December 31, 2003, please visit: ) I will point only at major issues where changes were proposed by the Bureau and Conciliation Commission:

The issue of market economy, the authority to print money, the language of the national anthem, exceptions to the issue of the forced labor, the necessity for administrative reform, the issue of provision of free medical services by the state the issue of extending of help to the descendants of martyrs and to the disabled and handicapped individuals, the issue of provision of free education at most levels, the powers and duties of the president, the citizenship of the head and members of the government, the need for a Constitutional High Council to share supervision of the Constitution, boosting up of the powers of the parliament at the cost of reducing of the president's powers, and a host of other issues proved to show the divisions within the Jirga and the deep concerns of the delegates regarding the choice of a strong presidential system and seeking of methods to check his powers. Furthermore, most of these issues showed the ethnic divide among various groupings in the country and the concern mainly of the warlords and their supporters about dilution of the powers of regional warlords when a central strong government is chosen. The viewpoints of the delegates on some of the issues above were so far from those of the Karzai government that at times it was feared that the Jirga would fail altogether. Voices of disagreement were heard at great distances from the main tent and many representatives of the mass media transmitted them to the world at large to hear.

Within the Jirga, some of the well-known personalities such as Professor Rabbani, Professor Sayat, General Rashid Dostum and some of other ethnic representatives belonging to minority tribes together with a valorous women's delegates group continued to voice their objections to the procedures, to the tactics used by the government to influence representatives and to the shortcomings of the draft. (There were also some reports that alleged bribing of the delegates by the government with cloaks, money and banquets to support its stand. Another unconfirmed rumor suggested that heads of the committees were promised a big sum of money to spend in their provinces on their own discretion upon return home from the Jirga.) At one time, the grievances and the disagreements of the participants gave way to the formation of a boycotting group consisting of one third of the deputies. The situation shook up the foundation of the Jirga, but Karzai did not back off from his stand of insisting on a strong presidential system for the government and blocking of efforts to include the post of a prime minister to share the powers of the president. However, the problem was so grave that it required a temporary adjournment of the Jirga so that diplomats, the United States and the United Nations officials and government activists could find peaceable solution for preventing a serious boycotting of the Jirga.

Two Famous Blunders and the Voices of Valorous Afghan Women:

The Chairman of the Jirga, Professor Sibghatullah Mojadedi an experienced politician and one of the good choices for the leadership of the Jirga was expected to play a miraculous role in leading the Jirga to a successful end. For the most part, his eloquence, his familiarity with the task at hand and knowledge of the characteristics of the participants helped him play a positive role to the benefit of the wishes of the organizers of the Jirga. However, in the course of the Jirga he made two errors of judgment. After the declaration of the organization of the Jirga in ten committees and introduction of their officers, a young woman delegate Malalai Joya from the province of Farah asked for a couple of minutes during which she in a calculated tone criticized the choice of the committee officers which consisted of the so called Mujahidin. Representing her constituency and in fact, as many would agree, majority of the Afghans, she questioned the wisdom of letting these elements lead the committee discussions. Because of the significance of her intervention, her speech on December 17 addressing the Loya Jirga is copied here in its entirety:

"My name is Malali Joya from Farah Province. By the permission of the esteemed attendees, and by the name of God and the colored-shroud martyrs, I would like to speak for couple of minutes.

My criticism on all my compatriots is that why are they allowing the legitimacy and legality of this Loya Jerga come under question with the presence of those felons who brought our country to this state.

I feel pity and I feel very sorry that those who call Loya Jerga an infidel basis equivalent to blasphemy after coming here their words are accepted, or please see the committees and what people are whispering about. The chairman of every committee is already selected. Why do you not take all these criminals to one committee so that we see what they want for this nation. These were those who turned our country into the nucleus of national and international wars. They were the most anti-women people in the society who wanted to who brought our country to this state and they intend to do the same again. I believe that it is a mistake to test those already being tested. They should be taken to national and international court. If they are forgiven by our people, the bare-footed Afghan people, our history will never forgive them. They are all recorded in the history of our country."

Ms. Joya's speech created a strong reaction on the part of the so-called Mujahidin and Professor Sayaf asked the chair for five minutes to respond to it. In his lengthy speech Sayaf enumerated the sacrifices of the Mujahidin and pointed to some of the delegates as elements of communism that were there to disturb the proceedings.

Professor Sibghatullah Mojadedi asked that Ms. Joya should leave the meeting. She did not. Professor Sibghatullah Mojadedi then asked her to apologize for her statements against the Mujahidin. She refrained from doing so. Professor Rabbani then suggested that forgiveness is a merit and should be shown to this case. And the Jirga bought the argument.

Later Professor Sibghatullah Mojadedi qualified his action by saying that it was for the security of the delegate Joya that he had asked her to leave the meeting. He also later tried to correct himself by saying that when he had said that in Islam two women equal one man was not to belittle women, but that women should have had more representation in the Jirga meaning that instead of one hundred women, since the Jirga consisted of about 400 men, then the number of women should have been eight hundred. None of these explanations would convince the observer of the intentions of the chair of the Jirga.

Another time, as per Jirga rules, more than 151 members produced an affidavit, which should have served as legal basis for consideration of their point in open debate about the official name of Afghanistan. They wanted the name to be the Republic of Afghanistan instead of the Islamic Republic of Afghanistan. They argued that by structure the Afghan nation is made up of more than 99 percent of Moslems and thus it was superfluous to call their country Islamic.

Professor Mojadedi reacted strongly to the affidavit by saying that it was the work of infidels and those who opposed Islam and therefore the Jirga would not entertain the request. His ruling was so out of order that one of the international observers, Mr. Fransisc Vendrll, representing the European Union, expressed surprise and fear in an interview on the issue.

Brave Afghan Women:

Besides, the young woman from Farah, namely Ms. Joya, there were 99 other strong, vociferous and fearless women as delegates to the Jirga. Dr. Masooda Jalal, a known figure from the last Loya Jirga was another Afghan woman who dared speak out her mind on important issues including the performance of the transitional government and rejecting some of the claims made by Karzai as major achievements of his government.
Another woman was elected as the Vice Chairman of the Jirga and many others worked hard to not only make their presence noted, but to make the Jirga recognize essential rights of the greater half of the Afghan population namely the women. Some observers were surprised to note the bravery of the women in taking a firm stand on their convictions even in the face of threats to their lives and apparent attempt at inflecting physical damage to them. Ms. Joya, at attempt on whose life had reportedly been made by an intruder at the women delegates' hostel had to be protected by the United Nations at an undisclosed site.

Important Figures outside the Jirga:

US Ambassador Zalmai Khalilzad was a key figure and a close watcher of the Jirga proceedings. Khalilzad who has been with the Afghan case even from times before, during and after the Bonn Meeting and especially during the Emergency Loya Jirga was considered not only an important American personality, but a close adviser to President Karzai, who is as important to the United States as he is presently to Afghanistan. Ambassador Khalilzad has consistently denied intervention in the Emergency Loya Jirga, the decision of the former King to give up any chance for Afghanistan's leadership and instead accept the ceremonial title of the Father of the Nation, and the current Loya Jirga. However, many observers agree that he has been in constant touch with the Jirga and with the transitional government of Afghanistan as well as his adopted country's President Mr. George W Bush. His government is also credited in helping the transitional government in Afghanistan prepare for the Jirga.

Lakhdar Brahimi, the United Nations Secretary General's special representative and one of the main pushers for peace in Afghanistan before, during and after the Bonn meeting, very similar to Khalilzad, was another important personality that had participated in the preparations for the Jirga, the Jirga itself and considered the success of the Jirga as a personal achievement as well.

The above two diplomats are credited in working behind the curtains to make the final agreement of the Jirga possible. The reason for this besides their long participation in the process is their personal involvement in planning for a new, democratic and peaceful Afghanistan.

The Father of the Nation:

As the old "Father" that he is called, he participated in the opening and closing ceremony with short benevolent speeches void of political ferver. The Constitutional Loya Jirga clapped at his lukewarm speeches read with some degree of difficulty because of his frail physical status.

Test Results:

The exercise concluded after three weeks on Sunday January 4, 2004. It proved the hypothesis, at least on paper to be true. It further proved:

  1. 1. You can exercise democratic process even under very difficult conditions where true and universal representation of the nation cannot take place. The idea of selection and election of a huge Electoral College from villages, districts and provinces could be used as the basis for the democratic effort.
  2. You can translate democratic principles from any democratic document of the West, change it to suit local conditions, put it up for study and discussion and within a given period of time, minus or plus a few days, expect passage of your original draft with some changes that could not absolutely been avoided.
  3. Expect the document to work.
  4. You can come up with a Constitution for an Islamic country where the word Sharia is not mentioned as the basis for the Justice System, but a strong wording open to interpretations stresses the importance of Islam as the main law of the land.
  5. The test also provided precedence for repetition of the exercise in other similar societies in the world promising similar degree of success.


Afghanistan now has a new Constitution. It serves as a document for not only the return of peace to the country, but for the start of an era of true reconstruction and resuscitation. Afghanistan is now only one step away from having a permanent democratic government that would complete the process of the country's unity, establish the country's dilapidated administrative system and take up the difficult but the most necessary process of reconstruction not only of the infrastructure, but of the economy as a whole. Above all others, it is now ready to tackle the most difficult and the most challenging issue of provision of security for the ordinary women and men in the country. The Constitution has explained the mandate of the future government of Afghanistan and it is the task of whoever gets to lead that government to fulfill the national aspirations of the Afghans for a peaceful, secure and prosperous Afghanistan where men and women would work together to achieve the highest social goals for the current and future generations of Afghanistan and to live in a united country and be called Afghans equal in status irrespective of their ethnic origin or linguistic root and equal in the eyes of the law. The document may have shortcomings that might be corrected in the future by the process of amendments, but one thing that makes it a welcome step in the process of nation building in Afghanistan is hope. It nurtures hope.