New Afghan Constitution seeks to prevent civil conflict

The draft Afghan Constitution, released today, protects important minority rights in an attempt to heal ethnic and religious divisions in the country, Minority Rights Group International said. ‘The draft constitution’s protection of religious freedom and equality between people of different ethnic groups, although far from perfect, is a welcome step away from the inter-communal conflict of the past’, said the organization.

Article 6 of the draft provides that the state is obliged to ensure national unity and equality among all ethnic groups and tribes and to provide for balanced development in all areas of the country. The official languages will be Pasto and Dari, but the constitution also requires the state to implement effective plans for strengthening and developing all the languages of Afghanistan (article 16) and to provide the opportunity to teach native languages in the areas where they are spoken (article 43). Although stating that Afghanistan should abide by international legal standards, including the Universal Declaration of Human Rights, there is little specific provision for women’s rights, beyond the establishment of programmes for women’s education.

‘After decades of violations of the rights of ethnic and religious minorities, which reached its height under the Taliban, this draft constitution is a welcome attempt to move towards a multi-ethnic future for Afghanisation’, said Mark Lattimer, Director of Minority Rights Group International. ‘Its provisions on linguistic rights go beyond what is available in most Western states. The draft Constitution’s emphasis on a unified country belonging to all ethnic groups is a clear message that Afghan’s warlords should not win,’ he added.

Article 2 of the draft Constitution establishes Islam as the religion of Afghanistan, but importantly also provides that followers of other religions are free to perform their religious ceremonies within the limits of the law. While the most controversial issue in the drafting process has been the precise status accorded to Islamic law, rather less attention has been paid to the potentially divisive issue of which form of Islamic law is recognised in the constitution. The 1964 Constitution, an amended version of which is currently in force following the Bonn agreement, establishes that in matters not covered by the Constitution or parliamentary legislation, ‘The provisions of the Hanafi jurisprudence of the Shariaat of Islam shall be considered as law’. This left Muslims (including notably the Shi’a Hazaras, who are Afghanistan’s most discriminated minority) who do not follow the Hanafi (Sunni) doctrine unprotected. Article 131 of the new Constitution however says that the courts will apply the Shi’a school of law in cases dealing with personal matters between members of the Shi’a sect. Similarly, although the 1964 Constitution required that the Head of State be Sunni, the new draft specifies only that the President should be Muslim and of Afghan parentage.

Although a consultation process has been underway since the Summer, it is worrying that the draft itself has not become publicly available until a few weeks before the constitutional Loya Jirga needs to agree it in December. ‘All the country’s different ethnic and religious communities should participate in formulating Afghanistan’s new constitution, and the constitution-building process should be transparent and accountable,’ said Minority Rights Group International. ‘To ensure genuine participation in the upcoming elections, the international community should increase its current commitment to providing support to the International Security Assistance Force. International development agencies should support the creation of a safe and habitable environment so that refugees and internally displaced persons from all ethnic and religious groups can return to their homelands. Such efforts should include support to assist returnees to reclaim land and property.’

Notes for editors

• The Loya Jirga to approve the draft constitution has been scheduled for December. Under the Bonn Agreement, elections to choose a ‘fully representative government’ need to take place before June 2004.
• Download MRG’s November 2001 Report ‘Afghanistan: Minorities, Conflict and the Search for Peace‘