Scheppele: Serious flaws in Afghan constitution

With nation-building in emerging democracies at the center of today’s international news, much attention has been paid to the important task of creating stable governments. Kim Scheppele, professor of law and sociology, has played an important part in this worldwide process, most recently as an advisor for a United Nations task force charged with helping to construct Afghanistan’s new constitution.

Scheppele was brought in by the UN specifically to provide recommendations about the judiciary and constitutional review of the new government. As an expert in the field, Scheppele has had global experience, including work on the Hungarian constitution after the fall of the Soviet Union. Even with the credentials of Scheppele and the UN team, however, most of their recommendations went unheeded in the drafting of the constitution.

According to Scheppele and other constitutional scholars, the chief problem with the new constitution lies in the amount of power given to the president. Unlike the American system, with its built-in separation of powers and checks and balances, the Afghan constitution enables the president to dominate. His powers include appointing supreme-court justices, with little or no consultation from other branches of government, appointing a significant percentage of the members of parliament as well as all the ministers and heads of governmental agencies, and being the sole provider of proposed legislation to the parliament.

Scheppele said of the Afghans, “They basically ignored all the advice. Of course, not all advice is worth following, but what they came out with is a constitution written for abuse. A constitution written for angels, not devils. You write a constitution because you don’t need to worry about the angels.”

Scheppele noted that with such vulnerability to abuse, Afghanistan might have been better off with its constitution of 1964. “Afghanistan had a promising constitutional history. In my view, the old constitution would have been fine. The problem with the draft of this one is they had few people with the relative expertise to do it. When you’ve had no functioning university system for 20 years, you’re not going to start with an expert group.”

Originally published on February 26, 2004