While the issue of women's rights has received much attention in the press and by various organizations studying the Afghan draft constitution, the question of the monopoly over the use of force and the creation of a legal framework for the presence of foreign forces on Afghan soil has not been debated at any length.

Women's Rights

The current draft, reviewed strictly textually and without appropriate regard for Afghanistan's history and social conditions, arguably contains no infringements on the rights of women. The language used in the draft does not distinguish between genders in any article. While the Dari language is not gender distinctive, the careful wording in the Pashtu version of the draft has eliminated any reference to gender regarding to the occupant of the office of the president or any other position.

Not only does the draft constitution not deprive women of their rights, it affords female citizens of Afghanistan certain affirmative actions designed to promote their presence in the decision-making levels of the country. For example, in the election process for the members of the lower house of the Melli Shura (National Assembly) -- the Wolesi Jirga (House of People) -- the draft stipulates in Article 83 that "at least one female delegate should be elected from each province." Likewise the president, who under the provisions of Article 84 selects one-third of the members of the upper house of the Melli Shura -- the Meshrano Jirga (House of Elders) -- must appoint half "of these people from among women."

But while there is an absence of "negative discrimination" in the draft constitution, the advocates of women's rights in Afghanistan are concerned with the lack of more specific language guaranteeing the equality of women in a strictly male-dominated society.

This concern is clearly expressed in proposed amendments to the draft constitution spelled out by the Gender and Law Working Group on 5 November (see "News" section below). Those amendments would constitutionally "recognize the considerable role" that women play in Afghan society. If the proposals of the Gender and Law Working Group would be accepted, the constitution would actively prohibit those cultural and customary practices prevalent in Afghanistan that can work "against the dignity, welfare, or interest of women" -- such as forced marriages, denial of inheritance, or lack of participation in local tribal councils. The amendments also call for constitutional guarantees ensuring that women have "fair and just working conditions" and the freedom to marry a spouse of their own choosing. The constitution, if amended along the recommendations of the Gender and Law Working Group, would legally oblige the state to "provide special health services for mother and child during the period of pregnancy, delivery, and nursing."

A cursory look at the incidents that followed the adoption of the first Afghan Constitution of 1923 justifies the apprehension of women's-rights advocates in Afghanistan and their demands for specific provisions in the new Afghan constitution to safeguard the rights of women.

A year after the promulgation of the 1923 constitution, the Pashtun tribes in the vicinity of Khost began to rebel against the central government in Kabul, then led by King Amanullah. The actual cause of this rebellion -- referred to in most sources as the Mangal or Khost rebellion -- is still debated. The controversy that in fact led to the Khost rebellion may indeed not have been Amanullah's then-progressive constitution, giving women certain rights and privileges, but rather the disenchantment of the local tribes and religious leaders with regard to the king's centralization programs threatening their autonomy. Nevertheless, the leadership of the Khost rebellion comprised mostly ulama (religious scholars), and their official complaint was that the new laws of the country did not conform to shari'a, or Islamic law. While Amanullah was forced to amend the constitution in 1925, reversing some of the freedoms accorded to women, the rebellion eventually forced the reformer king to abdicate his throne and leave the country in 1929.

Laws addressing matrimony, inheritance, and other family issues are a domain in which shari'a has traditionally had a strong influence in Islamic societies. In Afghanistan, the Islamic law codes also have been greatly influenced by tribal laws and customs -- albeit under the rubric of Islam -- which favor male domination in the society.

As such, while the draft constitution as it stands has no provisions that would infringe on the rights of women, the fact that the country has been named an "Islamic Republic" and that Article 3 of the draft stipules that "no law can be contrary to the sacred religion of Islam" may allow conservative forces in Afghanistan to usurp the rights of women. Conservatives may seize this issue to reinforce the traditions that are assumed to be Islamic, or as a means to undermine the central government -- if that government does not follow their directives.

The Monopoly Over The Use Of Force

One of the basic requirements of a sovereign state is the necessity of having a monopoly over the use of force. The drafters of the proposed constitution have envisaged the country as highly centralized, and the means and decision to use force are to be held solely by the president of the country. Article 64 of the draft stipulates that the president of the republic will be "the commander in chief of the armed forces of Afghanistan." However, what the draft omits are two main issues: one short-term and one temporary, and the other long-term or even permanent.

In the short term, the draft avoids any discussion of the presence of international military contingents and foreign bases on Afghan soil. Article 41 of the draft prohibits "foreign individuals" from owning "immovable property in Afghanistan." It allows only the "the sale of estates to diplomatic missions of foreign countries and to those international agencies of which Afghanistan is a member." The draft does not state whether it is permissible to lease property to foreign military forces or international military organizations, such as NATO. Likewise, the draft fails to tackle the norms that will govern the relationship between the Islamic Republic of Afghanistan and the multitude of foreign forces in the country.

In the future, Afghanistan is to have its own military to safeguard the state's interests from foreign and domestic threats; foreign forces are expected to eventually leave the country. However, the draft constitution is scheduled to be approved in December, and foreign forces will presumably still be in Afghanistan at that time. Perhaps the draft constitution should include specific provisions to this regard in Chapter 12, titled "Transitional Provisions." Otherwise, the president's legitimacy, especially given the absence of an Afghan National Army at this time, may erode domestically.

The more permanent question, not addressed at all by the draft constitution, concerns the role of various militia (some of which are currently much more powerful than the nascent Afghan National Army) and how they will or will not be incorporated into the country's future power structure.

The constitution does not prevent the formation of militia forces, nor does it call for the disbanding of current forces under various warlords, commanders, and generals. In the draft constitution there is only one reference to the existence of militia forces, and it does not explicitly prohibit them. Article 35, discussing the formation of political parties, indirectly leaves room for the existence of militia forces by only prohibiting political parties from having "military or paramilitary aims and structures."

Unless the new constitution for Afghanistan explicitly declares the illegality of any armed force within the country other than the Afghan National Army and perhaps certain tribal militia organized and supervised by the central-military structure, the future Afghan government will lack the necessary legal tools to disband the warlords and militias.

A Constitution with the Future in Mind

The new constitution is not only the symbol but also the core tool in moving Afghanistan toward a new future. If the constitution is genuinely reflective of the aspirations of the people of Afghanistan -- as it claims in its preamble -- then it ought to take bolder steps to ensure a successful future for the country. It should not become a tool for various powers which might attempt to take hostage the progress of Afghanistan and its ability to become a viable nation-state.

Without the freedom for Afghan women to exercise their right to vote without fear and intimidation, they cannot begin to be counted as equal citizens of their country. Let us remember that Kabul is not Afghanistan. Without a central army and a central police force with firm and abiding loyalties to the Afghan state, there can be no guarantee that Afghan women --- or men, for that matter -- will be able to exercise their constitutional rights. Today, unlike in the 1920s, the forces interested in a stable, forward-looking Afghanistan have foreign supporters that could help prevent a collapse of the system. This opportunity should not be wasted for short-term expediencies.

To quote Afghan Transitional Administration Chairman Hamid Karzai, a "constitution will be meaningless without a central army, a central police force, without the measures that are necessary to give the Afghan people the freedom to exercise their right to vote" (see RFE/RL "Afghanistan Report," 18 September 2003).