Bismellah Alizada
December 5th marked the 22nd anniversary of the Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions that was originally signed in English in Bonn, Germany. Its ambiguities and contradictions aside, the document provided an agreed framework that would lead, in two years, to the adoption of a new constitution. That promise was delivered, almost on time, and set in motion processes for setting up state institutions according to the new configuration, and the presidential as well as parliamentary and provincial council elections, in fall 2004 and fall 2005, respectively.
The new constitution was paramount because it was both the bedrock on which all the state institutions and processes that defined the new political order were founded and the glue that held all of them together. The new constitution has been lauded as the most progressive compared to those of the countries in the region and to its seven predecessors. While there are many reasons to contend with that statement, this article tries to explain how one built-in flaw in the Constitution allowed for its unravelling, consequently making a significant contribution to the collapse of the entire political order.
It is important to begin with a few caveats. Firstly, it is imperative to acknowledge that the fall of the political order that was ushered in by the 2004 constitution is profusely complex, and therefore, any attempt for monocausal, reductive, and oversimplified explanations should be received with caution and questions. Secondly, while this piece places its focus on some of the internal dynamics that gradually undermined the political order between 2005 and 2021, it does not aim to downplay the crucial role of external factors, emanating from the region and beyond. Thirdly, the author recognizes and appreciates the fact that the past two decades saw momentous changes in the country that possess sufficient resilience to outlive the current crises.
Separation, Division, or Fusion of Powers?
The process between the Bonn Agreement and the Constitutional Loya Jirga was not smooth by any measure. Annex I and Annex II of the Bonn Agreement testifies to some of such precarities. However, the agreement that was finally achieved was a breakthrough that parties to the conflict in Afghanistan had struggled to accomplish for nearly a decade. This milestone was made possible by a wide array of factors, among them was the element of coercion that remained a mainstay throughout. It was used to maintain the overall climate to keep the dynamics running to draft and adopt the constitution, to extract concessions in the process, to enforce the rules of the game as enshrined in the constitution, and to superimpose decisions that contravened such rules.
One indicator of such confidence and support was huge turnouts in the 2004 presidential and 2005 parliamentary and provincial council elections. One could also see it in refugees who were returning en mass.
Such coercive power placed certain parties above the rules of the game, both those agreed upon in Bonn and ones enshrined in the constitution. Various parties enjoyed such power to varying degrees, chief among them were the Americans. The then US Ambassador to Afghanistan, Zalmay Khalilzad, illuminates this by boasting in his memoir about using sound bombs to threaten Abdul Rashid Dostum into concession. Similar coercion was also used at critical junctures in the 2009, 2014, and 2019 presidential elections in ways and to the degree that determined significant outcomes in the interest of Hamid Karzai and Ashraf Ghani. These cases simultaneously hamstrung the political order by smashing its key pillar: that the sovereignty rests with the people of Afghanistan who would exercise it through free and fair elections. The Afghan presidents also resorted to the unconstitutional use of coercion to win certain games.
But what was the flaw in the constitution and how can it be blamed? The answer lies in the way that the Constitution undermined the separation of power that granted the president power over the judiciary and the legislative branches. As Nazif Shahrani has argued, the constitution combined the powers and authorities of the king and those of the prime minister in the 1964 constitution and granted them all entirely to the president. Such an architecture significantly undermined both the Supreme Court and the National Assembly. In addition to a weak judiciary, two other factors allowed the president to utilize his extensive powers unaccountably: a “no party” democracy system that made it easier for the president to manipulate the parliament and a hyper-centralized system that foreclosed any potential challenge or resistance from the ground up.
The moment of transition entailed power to be used to heal, make amends and redressals, and bring people across fault lines together around a shared agenda and a common vision. The presidency’s unbridled powers, however, were used by successive officeholders to wound, re-active fault lines, and sow divisions. Consequently, the constitution as the rules of the game was gradually unravelled rather than consolidated. A glaring example is how President Karzai managed to elicit a ruling from the Supreme Court in 2007 to reinstate Rangin Dadfar Spanta as his minister of foreign affairs until 2010, even though he failed to secure a vote of confidence from the parliament. Later on, President Ghani managed to run most of the ministries by caretaking ministers for extensive periods. When President Ghani assumed power, completely unconstitutionally, he managed to delay parliamentary elections by at least three years under the pretext of putative electoral reforms that delivered two of the most rigged elections in 2018 and 2019.
At subnational levels, the lack of division of powers drove a wedge between the people and the government, eating away the popular support that was the lifeline for the fledgling system. In many cases, presidents used coercion to exercise such powers against local will, for instance in changing governors (e.g., governor of Herat in 2004, and governor of Balkh in 2018). Presidents also needed to resort to coercion to appoint officials against the popular will (e.g. in early 2018 in Samangan, in early 2021 in Behsood district of Maidan Wardak, and in 2021 in Faryab province). As a result of such stand-offs, the rules of the game lost their charm. Using coercion to shape outcomes was like kicking under the chessboard when you lose. Rather than rules-based, the country fell to the grip of deals-based politics with two centres: the president and the foreign powers (mostly Americans).
Rather than rules-based, the country fell to the grip of deals-based politics with two centres: the president and the foreign powers (mostly Americans).
The hyper-centralized system that was purportedly intended to buttress political stability gradually proved to achieve the contrary. The bitterly disputed 2014 elections laid bare the precarity of the ostensible political stability. These tensions not only revealed how the rules of the game had become irrelevant but also how coercion by the president was no longer sufficient to settle disputes. Although the dispute was resolved by an intervention from the United States, the president had to make significant concessions on paper to share power. Although the president managed to maintain his powers on the ground, it did not translate into strengthening the constitutional order. Quite the opposite, it only degraded it.
Another illuminating example is the stand-off between the president and Abdul Rashid Dostum in 2018 following the arrest of a powerful local powerholder, Nizamuddin Qaisari. Tens of thousands of Uzbeks waged protests in several provinces in the north that went on for 20 days, practically taking over control from the government. The situation was so tense that the government appeared to be left with no options to use coercion. Finally, the government reached an agreement with Abdul Rashid Dostum, allowing him to return from exile and promising to release Mr. Qaisari. By this time, it was abundantly clear that Ashraf Ghani desperately used his extensive power as the president to make things work, but in practice, it only further destabilized an already fragile order.
The Three Deficits: Local Trust, Support, and Ownership
For the new order to work, state institutions and processes needed people’s trust, their active support, and their entrenched sense of ownership. At the outset, people showed promising levels of trust in the institutions and processes and tremendous support of them. One indicator of such confidence and support was huge turnouts in the 2004 presidential and 2005 parliamentary and provincial council elections. One could also see it in refugees who were returning en mass.
For such trust and support to be harnessed and maintained, institutions and processes needed to prove that they were for the people, reflected their realities and were owned by them. This never manifested for a range of reasons, among them was the hyper-centralized configuration of the state, that made it structurally impossible for the people at community levels to have a say in shaping and running these institutions and processes and holding individuals in positions of power accountable. It was not long before that initial trust and support began to erode. Consequently, state institutions and processes kept shrinking in relevance and importance.
As the formal institutions and processes decayed, corruption and informal order filled the vacuum. A complex network of local power wielders, government officials, illegal armed groups, and crime groups, among others, dominated the void. The central government at times weaponized coercion to rein them in but mostly developed a symbiotic relationship with them through a patronage system. Such networks were instrumentalized at various junctures and by various actors, including the president. Local officials who were appointed by the central government through complex arrangements and deal-making were increasingly seen as corrupt, insensitive to local problems, and in many cases total aliens who even didn’t speak their language.
The state and its institutions were increasingly alienated from the society. The distrust in state-run institutions like the local court system was so deep that in some cases, people took their legal matters to the Taliban to be summarily settled. It was not that what the Taliban were selling was attractive. Rather people were extremely frustrated with how the formal system had become dysfunctional, and they had no role in changing it or holding it accountable. On the contrary, their voice and protests were faced with brutal repression in many cases. In the 2016 mass protests, also known as the Enlightenment Movement, the protesters famously chanted: “It is not lack of electricity that pains us, it is being treated differently.” Mass protests revealed that people still had some degree of hope that their voice mattered, but the developments that followed completely disillusioned them.
The 2019 presidential elections serve as a telling case in measuring trust in institutions and processes. For one, voters’ turnout in the first round of the presidential elections was as low as 20 percent, a staggering decrease from an estimated 70 percent in the 2004 presidential elections. For another, it saw two inaugurations that dragged the country towards extreme polarisation and a high likelihood of an all-out war along ethnic and factional lines. By this time, one could see that the constitution that had ushered in the new political order had been rendered entirely irrelevant and hollow. Therefore, it was only a matter of time before the entire order built on that foundation crumbled.
Coercion: From Stabilising to Destabilising
Among the many flaws of the 2004 constitution was the fact that it enshrined a form of fusion of powers rather than separation and division. Separation of power could ensure the independence of the three branches of government and configure sufficient checks and balances against abuse of authority. Such an arrangement, ideally in a party system, would allow the legislature to exert more power against abuse by the executive. A stronger separation of powers would also see an independent and powerful judiciary that would provide more assurances against violation of the constitution, especially by the president. Independent judiciary and national assembly would also make a stronger bastion against the use of coercion by foreign actors to effect unconstitutional outcomes.
Mass protests revealed that people still had some degree of hope that their voice mattered, but the developments that followed completely disillusioned them.
While the horizontal asymmetry of power between the three branches of government encouraged unaccountable use and abuse of power by the president, the lack of division of powers on the vertical dimension made it impossible for the people to play a role in shaping and running government institutions and processes, on the one hand, and electing and holding government officials accountable on the other. This led to increasing trust deficit, popular support deficit, and a sense of ownership deficit at subnational levels. In the face of all of this, the central government thought coercion could always have a stabilizing effect, but after a certain point, it began to prove fatally destabilizing.
Bismellah Alizada is a PhD candidate at the School of Oriental and Africa Studies (SOAS), University of London.
