By Mina Habib
As Afghanistan marked the eighth anniversary of its constitution this month, legal experts bemoaned the failure to put it into practice, blaming conflict, corruption and a culture of impunity.
The constitution passed on January 4, 2004 laid out a vision of a modern Afghanistan committed to human rights, democracy and the rule of law.
At the anniversary ceremony held in the capital Kabul, the assessment of the last eight years was bleak. Critics said the rich and powerful systematically disregarded the letter of the law, while foreign military operations undermined the principles of sovereignty enshrined in the constitution.
Gul Rahman Qazi, who chairs the Independent Commission for Overseeing Implementation of the Constitution, focused on the NATO-led international force, saying its presence was in breach of articles upholding national sovereignty, making security and defence the responsibility of the government alone, and outlining the rights and obligations of foreign nationals.
The United States embassy declined IWPR’s request for a comment on this, while NATO’s International Security Assistance Force sent an email saying its support for Afghanistan was consistent with international law, a mandate from the United Nations, and agreements with the government.
The Afghan parliament is at loggerheads with President Karzai, and the anniversary offered his political opponents another chance to accuse him of imposing unconstitutional decisions. One of their central complaints concerns his move to review some results of the September 2010 parliamentary election following allegations of fraud. (See Afghanistan's Troublesome Parliament for background on this.)
Sardar Mohammad Oghli, a vocal critic of Karzai and a former member of parliament from the northern province of Faryab, alleged that the president had violated the constitution at least 20 times, for example by changing the scheduled dates of elections, and keeping ministers in their posts despite votes of no confidence by legislators.
Abdullah Abdullah, leader of the opposition Coalition for Change and Hope, said the president encouraged others to ignore the constitution by breaching it himself.
“When the president himself violates the constitution and uses it as an instrument for his own will, this obviously paves the way for others to interfere in implementing the law,” he said.
Rafi Ferdous, an advisor at the government’s media centre, said the allegations levelled by Karzai’s critics and the media were unfair, arguing that radical change could not happen overnight.
“It is true that in some cases, the constitution has not been implemented in the past eight years, but turning it into a reality is going to take many years,” he said.
Faizullah Jalal, professor of law and political science at Kabul University, said there was a whole swathe of Afghan strongmen who acted with impunity.
“The laws have always been broken by powerful individuals,” he said. “This has not only undermined national unity, it has fed a ‘mafia dragon’ which has swallowed up both the people and the government.”
In Kabul, people said they were fed up with lawlessness in its different forms.
“The law is blind here; it does not distinguish between the innocent and the guilty,” shopkeeper Gul Agha said. “When ordinary people commit a crime, they are jailed for years without trial, but if powerful individuals or their relatives break the law, there is no one who can bring them to justice.”
A city traffic policeman, speaking on condition of anonymity, said disregard for the law was symbolised by the driving habits of people in power.
“Ministers, deputy ministers and [paramilitary] commanders break traffic laws. They drive on the wrong side of the road, they go over intersections illegally, and generally ignore the rules,” he said, adding that it was impossible to stop them and charge them with such violations. If traffic officers tried, he added, they would be threatened by the armed men who surround such people.
Mina Habib is an IWPR-trained reporter in Kabul.