Remarks by Managing Partner at Herat Security Dialogue – VI

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Herat-1

Excellencies, Ladies and Gentleman,

I am grateful to the Afghan Institute of Strategic Studies – specifically to Dr Moradian and his colleagues for organizing, as usual, such an august event.

13 years after the adoption of the current Constitution of Afghanistan in 2004, it is appropriate to assess how the country has fared under its adopted system of government and, specifically, whether the Executive Branch is suited to meet the needs of the country and to make recommendations for the way ahead.

That question is discussed in details in a paper that I recently co-authored with my colleagues Thomas Kraemer and Humayoon Raoofi and published by Afghanistan Research and Evaluation Unit (AREU) with support from the United States Institute of Peace (USIP).

The research paper first reviews the role of the executive branch under classic forms of government, including Parliamentary, Dual or Mixed and Presidential systems, provides a history of various Afghan constitutions, beginning with the version adopted in 1923 several years after declaration of independence (1919).

The paper also analyses how and why Afghanistan adopted its current Constitution and how that model has served the country, assessing its effectiveness, with particular focus on the National Unity Government and makes reform recommendations.

Now, please rest assured, I will not go over all of that. For those interested, I have a dozen copies of the report that I can share and you may access it on AREU website as well. Here, I will only touch upon some key aspects of the research paper and on its conclusions.

The research involved Desk Research regarding the Role of the executive branch, Afghanistan’s constitutional history, and Expert commentary on 2004 Constitution and on the National Unity Government. Further, more than a dozen interviews were conducted with key Political Actors and Constitutional/comparative law experts.

Most constitutions rely on the concept of separation of powers to prevent the concentration of political authority in the hands of a few, and thereby promote a democracy. A critical component of any democratic form of government is the executive branch — however, it may take various forms, based on the agreement of the political class and the people and the needs of the country.

The current Constitution of Afghanistan was ratified in 2004. The ratification process, which took place with significant international assistance, resulted in the adoption of an Executive Branch with authority concentrated in a directly-elected President with broad powers. This type of government was deemed more suitable than other structures, among other reasons, due to Afghanistan’s status as a post-conflict country, relatively short history of democratic government, and lack of strong political parties.

There are not set criteria for evaluating he Executive Branch but the following criteria — Legitimacy, Flexibility, Accountability, Effectiveness and Stability — seem important:

  • The government must be perceived, both by other countries and by its own population, as legitimate, with a legal basis (such as being the result of free and fair elections), and dedicated to the public good rather than its own ends.
  • The government must be able to adapt and adjust to changing circumstances – that is it must have flexibility. If an executive structure is too rigid, the government may not be able to move quickly and decisively in times of emergency.
  • It is also imperative that the government, especially the executive branch, be accountable to the people and to other branches; specifically, to the legislature.
  • And in order to be effective, the government must be able not only to set policy, but also to implement it, enforce laws, and serve people.
  • Finally, Governments subject to being second-guessed, or even dissolved, at every turn may lack the fortitude to push through reforms or controversial policies. In other words, they must be stable.

Assessing the experiences of the past decade will take long; instead here would like to focus on short analysis of the various options and recommendation for the future.

With the above-mentioned criteria in mind, many constitutional experts and believe that parliamentary systems—which rely on consensus-building—work best when a country has strong, organized political parties. In Afghanistan, political parties exist, but the system is not mature.

Given the chaotic nature of the political party system in Afghanistan, and the challenges of nation-building after years of war, almost all constitutional experts and political actors opined that a parliamentary system is ill-suited to the country’s present needs. Such a system requires either strong parties, or multiple parties willing to work together to build coalitions, which for practical reasons, are currently absent.

A parliamentary system remains an aspiration, and there are sometimes calls for it from among the political elites, but it does not seem to be a viable option for Afghanistan at this time.

Some have argued that a Mixed or a Dual System would be more suitable for, among reasons, greater representation, at perhaps, significant risks to effectiveness and stability of the system.
The most well-known model of a dual system is the French Model, but that seems to be applicable as a developed democracy. We must keep in mind that critical for its relative success is that most often the President and the Prime Minister come from the same party. There is agreement of experts that in 1986 when they were from rival parties—a period known as “cohabitation” —the French system did not work well.

The mixed system of a President and a Prime Minister poses even additional challenges where the authorities of each office would need to continuously be negotiated and determined and could drastically slow down or weaken the Executive in the face of major challenges. In fact, the dual system could easily risk breaking down in the absence of strong legal foundations, has precedents that guide the leaders, and there is a clear arbitrator in case of inevitable disputes over powers – all of which are either absent or weak.

That leaves us with the Presidential System. The results of this study, and the views of most Experts interviewed, are consistent with the assessment that an improved presidential system is the most appropriate structure for Afghanistan for the foreseeable future. There is recognition that the current structure needs to be modified, bearing in mind its successes and failures in application over the last decade.

A government headed by a single executive with broad authority is viewed as the best option for Afghanistan, a post-conflict country with a political system that has not reached maturity. However, in a multi-ethnic country such as Afghanistan, the the President and his team of Vice Presidents would need to receive votes and support from across ethnic groups in order to ensure legitimacy and stability.

Strengthen Local Governance need to be main focus of the constitutional reform. Phased and careful delegation of some authorities of the Presidency and the strengthening of other institutions both at the center and in the provinces would reinforce democracy in the country. Our research suggests that under the current system the President may get involved in both major national policy issues and minor matters in both Kabul and in the provinces. There is a concern regarding too much centralization of decision-making, and weakness and administrative paralysis at the lower levels of the government. The efficiency of the state would most likely improve if the decision-making processes were more streamlined, and if other institutions both at the center and the provinces were empowered.

Empowering secondary organizations should be part of the reforms in the center – their authority should be specified in the Constitution. Key government functions such as the Civil Service Commission or an Anti-Corruption should be given constitutional standing, their stature and legitimacy greatly increased and their effectiveness enhanced. It would also go a long way in establishing non-political or less politically influenced national institutions.

To strengthen stability, the language of the Constitution granting the authority of Constitutional interpretation to the Supreme Court should be unambiguous, which is currently not, or in keeping with modern with international constitutional practices, the authority to interpret the Constitution should be vested in a newly-created Constitutional Court.

As a general rule, the concept of separation of powers works best when there are clear majority and opposition parties operating within the political system. Accountability suffers when the political landscape is dotted with dozens of small groups and self-interested individuals. Establishing an environment where legitimate political parties can flourish, and candidates can freely declare party affiliation, will enhance the political process and expand the country’s executive branch options.

To bring the above-mentioned reforms for enhancing the legitimacy, effectiveness and stability of the Presidential System would require the convening of the Constitutional Loya Jirga – which is to be made up of (1) the members of the two house of the National Assembly, and (2) the heads of the Provincial and District Councils. Therefore, overdue Lower House elections should be conducted to ensure that the participation of National Assembly members in the Loya Jirga is viewed as legitimate. Similarly, local elections should be held for heads of District Councils as they make up a significant number of the Constitutional Loya Jirga.

There are concerns that a Loya Jirga, once convened, might become embroiled with identity and ethnically-charged issues and discussion of fundamental rights. In order to address these concerns, the scope of the issues should be limited to those involving and relevant to the structure of the Executive Branch. In particular, Chapters I and II – the State and the Fundamental Rights and Duties of Citizens – should not be subject to reconsideration.

In conclusion, there is a consensus, and that is not uncommon for a post-conflict country, to consider amendments/improvements to its constitution after in practice for 13 years. But the process for the constitutional reform must be taken with great care, and broad deliberations to ensure that the system chosen is not only seen as legitimate and representative and also effective, flexible and yet stable.

Thank you!

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