Afghanistan: Analysis of Afghan constitution by Nasrine Gross
Source:
Nasrine Gross Initial review of Afghanistan's Constitution.
1. In addition to the Preamble, the Constitution has twelve chapters as follows:
To review the Declaration, please visit www.kabultec.org. To print and/or view the Constitution in English, please visit www.constitution-afg.com
- The Preamble with eleven bullets
- Chapter one: The State, articles 1 - 21
- Chapter two: The Fundamental Rights and Duties of Citizens, articles 22 - 59
- Chapter three: The President, articles 60 - 70
- Chapter four: The Government, articles 71 - 80
- Chapter five: The National Assembly, articles 81 - 109
- Chapter six: The Loya Jirga, articles 110 - 115
- Chapter seven: The Judiciary, articles 116 - 135
- Chapter eight: The Administrative Division, articles 136 - 142
- Chapter nine: The State of Emergency, articles 143 - 148
- Chapter ten: Amendments, articles 149 - 150
- Chapter eleven: Miscellaneous Provisions, articles 151 - 155
- Chapter twelve: Transition Provisions, articles 156 - 160
2. A preliminary comparison of the articles of Chapter two of the Constitution with the ten articles of the Declaration of the Essential Rights of Afghan Women looks like the following:
- Article 1 of the Declaration (Equality and CEDAW) is found in articles 22, 23, 32, 50 and 58 of the Constitution.
- Article 2 of the Declaration (Personal security and condemnation of torture) is found in articles 29, 40, 54 and 58 of the Constitution.
- Article 3 of the Declaration (Right to health, mother and child's health) is found in articles 52, 53 and 54 of the Constitution.
- Article 4 of the Declaration (Equal protection under the law) is found in articles 22, 31 and 51 of the Constitution.
- Article 5 of the Declaration (Right to education) is found in articles 43, 44, 45, 46 and 52 of the Constitution.
- Article 6 of the Declaration (Right to work) is found in articles 48, 49 and 50 of the Constitution.
- Article 7 of the Declaration (Right to move about freely and independently) is found in articles 24 and 39 of the Constitution.
- Articles 8 and 9 of the Declaration (Freedom of thought, speech, political participation, etc.) are found in articles 33, 34, 35, 36 and 37 of the Constitution.
- Article 10 of the Declaration (Freedom to celebrate one's culture) is found in article 47 of the Constitution.
3. Some quick comments: On the whole most of the ten articles of the Declaration are well represented in Chapter two of the Constitution. The weakest is the right to health. In all, some measures go well beyond the provisions of the 1964 Constitution, like some paragraphs of articles 35 and 54, which are well done. And I am assuming that article 55 allows women to be drafted in the national army. Also, some of our recommendations to the Drafting and Revision Commissions are well represented in the draft.
This is clearly a draft that is going to be discussed at length and on many levels both before and during the upcoming Loya Jirga (December 10). Professor Shahrani has already announced that the Revision Commission will listen to the people's new suggestions. Some of the points I would like to see modified are:
1. In the Preamble, bullet nine, the word 'cultural' should be added.
2. The Constitution should recognize the right to health of the nation. It will take too long to develop a large and viable middle class that can support health as a financial transaction. Also, the Taliban essentially revoked this right from the women; we would like to see a clear message in this area.
3. In Chapter 6, article 110, the Loya Jirga does not include appointed members. It should include them. As well, there should be a provision for the inclusion of women. As it stands now, the Jirga consists of the Afghan official establishment (the National Assembly and presidents of provincial and local councils). We need to have a few appointed people outside the official establishment, both men and women. And this needs to be specified in this article. Perhaps like article 84 where for the Senate, the president appoints some members of the public with 50% of whom to be women.
4. In articles 138 and 140, there should be a provision for the provincial and local councils to include women. This is done in article 83 for the House of Representatives (at least one woman from each province) and it should be repeated for other councils as well.
5. In articles 136 - 142, there should be a provision that women will become governors of provinces as well as mayors of cities. Otherwise the current wording sounds exclusionary of women.
4. An appeal: This Constitution is still in draft form and Afghan women have not achieved victory yet. We must remain super vigilant until the day the draft is ratified into law. All tell-tale signs in Kabul point out to the increased activity against women's rights in the Constitution. This activity is not by Afghans themselves per se; rather, at the high international chess game, those opposed to women's rights, those opposed to a successful Afghan constitution and those chagrined at losing their gains in Afghanistan, all these three groups are working very hard (and very subtly) not to allow a fully democratic constitution in Afghanistan. And since women's rights is the easiest and first route to negotiate things out, all it takes is one short paragraph in one of these articles, limiting women's rights.
Please, please, stand by us and with us until the last minute. Please, contact your governments and insist that the equal rights of women as citizens is non-negotiable. Please all must insist with the Afghans too. We need this from you.
Also, as a sign of solidarity, please try to attend Negar's conference of 2000 Afghan women to be held in Kabul just prior to the Loya Jirga, when we will present to the Drafting Commission another 200,000 signatures in support of the Declaration of the Essential Rights of Afghan Women.
Let me know of your reaction and thoughts. My right; our common legacy...
Regards, Nasrine Gross
- The Preamble with eleven bullets
- Chapter one: The State, articles 1 - 21
- Chapter two: The Fundamental Rights and Duties of Citizens, articles 22 - 59
- Chapter three: The President, articles 60 - 70
- Chapter four: The Government, articles 71 - 80
- Chapter five: The National Assembly, articles 81 - 109
- Chapter six: The Loya Jirga, articles 110 - 115
- Chapter seven: The Judiciary, articles 116 - 135
- Chapter eight: The Administrative Division, articles 136 - 142
- Chapter nine: The State of Emergency, articles 143 - 148
- Chapter ten: Amendments, articles 149 - 150
- Chapter eleven: Miscellaneous Provisions, articles 151 - 155
- Chapter twelve: Transition Provisions, articles 156 - 160
2. A preliminary comparison of the articles of Chapter two of the Constitution with the ten articles of the Declaration of the Essential Rights of Afghan Women looks like the following:
- Article 1 of the Declaration (Equality and CEDAW) is found in articles 22, 23, 32, 50 and 58 of the Constitution.
- Article 2 of the Declaration (Personal security and condemnation of torture) is found in articles 29, 40, 54 and 58 of the Constitution.
- Article 3 of the Declaration (Right to health, mother and child's health) is found in articles 52, 53 and 54 of the Constitution.
- Article 4 of the Declaration (Equal protection under the law) is found in articles 22, 31 and 51 of the Constitution.
- Article 5 of the Declaration (Right to education) is found in articles 43, 44, 45, 46 and 52 of the Constitution.
- Article 6 of the Declaration (Right to work) is found in articles 48, 49 and 50 of the Constitution.
- Article 7 of the Declaration (Right to move about freely and independently) is found in articles 24 and 39 of the Constitution.
- Articles 8 and 9 of the Declaration (Freedom of thought, speech, political participation, etc.) are found in articles 33, 34, 35, 36 and 37 of the Constitution.
- Article 10 of the Declaration (Freedom to celebrate one's culture) is found in article 47 of the Constitution.
3. Some quick comments: On the whole most of the ten articles of the Declaration are well represented in Chapter two of the Constitution. The weakest is the right to health. In all, some measures go well beyond the provisions of the 1964 Constitution, like some paragraphs of articles 35 and 54, which are well done. And I am assuming that article 55 allows women to be drafted in the national army. Also, some of our recommendations to the Drafting and Revision Commissions are well represented in the draft.
This is clearly a draft that is going to be discussed at length and on many levels both before and during the upcoming Loya Jirga (December 10). Professor Shahrani has already announced that the Revision Commission will listen to the people's new suggestions. Some of the points I would like to see modified are:
1. In the Preamble, bullet nine, the word 'cultural' should be added.
2. The Constitution should recognize the right to health of the nation. It will take too long to develop a large and viable middle class that can support health as a financial transaction. Also, the Taliban essentially revoked this right from the women; we would like to see a clear message in this area.
3. In Chapter 6, article 110, the Loya Jirga does not include appointed members. It should include them. As well, there should be a provision for the inclusion of women. As it stands now, the Jirga consists of the Afghan official establishment (the National Assembly and presidents of provincial and local councils). We need to have a few appointed people outside the official establishment, both men and women. And this needs to be specified in this article. Perhaps like article 84 where for the Senate, the president appoints some members of the public with 50% of whom to be women.
4. In articles 138 and 140, there should be a provision for the provincial and local councils to include women. This is done in article 83 for the House of Representatives (at least one woman from each province) and it should be repeated for other councils as well.
5. In articles 136 - 142, there should be a provision that women will become governors of provinces as well as mayors of cities. Otherwise the current wording sounds exclusionary of women.
4. An appeal: This Constitution is still in draft form and Afghan women have not achieved victory yet. We must remain super vigilant until the day the draft is ratified into law. All tell-tale signs in Kabul point out to the increased activity against women's rights in the Constitution. This activity is not by Afghans themselves per se; rather, at the high international chess game, those opposed to women's rights, those opposed to a successful Afghan constitution and those chagrined at losing their gains in Afghanistan, all these three groups are working very hard (and very subtly) not to allow a fully democratic constitution in Afghanistan. And since women's rights is the easiest and first route to negotiate things out, all it takes is one short paragraph in one of these articles, limiting women's rights.
Please, please, stand by us and with us until the last minute. Please, contact your governments and insist that the equal rights of women as citizens is non-negotiable. Please all must insist with the Afghans too. We need this from you.
Also, as a sign of solidarity, please try to attend Negar's conference of 2000 Afghan women to be held in Kabul just prior to the Loya Jirga, when we will present to the Drafting Commission another 200,000 signatures in support of the Declaration of the Essential Rights of Afghan Women.
Let me know of your reaction and thoughts. My right; our common legacy...
Regards, Nasrine Gross
