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An Analysis of the State Building Process in Afghanistan
Remarks by Ambassador Said T. Jawad

American Bar Association

Ladies and Gentlemen:

I want to thank the American Bar Association, particularly Katlyn Thomas and Christopher Johnson for providing me with this opportunity to talk about the potential of democracy in Afghanistan.

I will briefly speak about the objective of the state-building process in Afghanistan, and then discuss our achievements and challenges for institutionalizing democracy, with special focus on our new constitution, the presidential and parliamentary elections, the state structure, our judiciary system, warlords, the role of women, and the problem of narcotics.

Afghanistan has historically been a strong nation, but the state institutions are systematically destroyed in the past 30 years by invasion, war, terror and violence. Three years ago, we inherited a country largely destroyed with a large and dysfunctional bureaucracy.

With the partnership of the international community, we embark upon the difficult task of building an efficient government with small scope of activity. Our objective has been to build a state that is effective, representative and capable of implementing policies and enforcing laws. We want to reduce the size of the state apparatus; and to increase its enforcement capability.

Our new constitution and our recent national elections are the cornerstones of our efforts to rebuild a democratic state with effective national institutions. On January 4, 2004, President Karzai signed our new Constitution into law. The new Constitution is a balanced charter that guarantees equal rights and full participation of women in all spheres of life.

The new Constitution is the most liberal in the region, and provides for a presidential system with a powerful parliament. The constitution prohibits the amendment of the fundamental rights of the people, unless done to make such rights more effective. The right of every person to an attorney is guaranteed. The constitution obligates the state to abide by the United Nations charter and international treaties and conventions.

The success of the Afghan presidential elections proved that the excuses are unjustified and the fears are misplaced. Elections strengthen stability. Our election was free of violence. The threat of a large scale terrorist attack and the fear of intimidation by warlords never materialized. In fact, the success of the election enhanced the partnership of the Afghans with the United States and over 45 countries that contributed troops, funds and resources to help stabilize and rebuild our country. We are grateful to each and every one of them. Together we have taken Afghanistan a long way forward in three short years

In December 2004, President Hamid Karzai announced the new Cabinet. There are three women in the Cabinet. All Ministers have a university degree, as required by the new Constitution, and nine have doctorate degrees.

In September 2005, our people will elect their representatives to the Parliament. To insure that over 25 percent of the members are women, the Constitution requires that two female delegates be elected from each of the 34 provinces of the country. The President appoints one-third of the senators, of which 50 percent must be women.

The new Constitution creates an independent and able judicial branch and institutionalizes Afghanistan's civil law system. The judicial branch consists of the Supreme Court (Stera Mahkama) in Kabul, Appeal Courts in each province, and Primary Courts in most Districts. There is no constitutional court in Afghanistan. The Supreme Court is in charge of the interpretation and oversight of compliance of laws with the Constitution. The Attorney General is an independent body and is part of the executive branch.

The new Supreme Court is comprised of nine members, who are appointed by the President, for a period of 9 years. Members of the Supreme Court can be tried in a special court for crimes committed during the performance of their duties.

Although Afghanistan has an official Gazette to publish laws, judicial opinions have not been published due to lack of resources. The Official Gazette has recently resumed its publication.

We have a civil law system. The first Commercial Code was adopted in 1955, followed by the Civil Code in 1976 and the Penal Code in 1977. All codes are being revised.

In remote areas, the population generally relies on informal and traditional systems of dispute resolution, such as arbitration or mediation by jirgas (councils) and tribal elders. The system is mainly based on local customs, which sometimes contradict sharia law.

The challenge in Afghanistan is not the absence of good laws; it is the lack of knowledge by legal professionals about the laws, and more importantly, the government’s limited capacity to enforce laws. During the 1990’s, many mullahs or clergies were appointed as judges and thus, now take part in the formal judicial system without proper training or knowledge of codes and procedures. Implementing the qualifications set by the Constitution is a major challenge due to lack of human capital and trained legal professionals. It takes many years to train a good judge. We can not import a good prosecutor.

Efforts to reform and improve the legal system have started by the Afghan Judicial Reform Commission, set forth by the Bonn Agreement. Reform has been slow. We have learned that creating new bodies and commissions to carry out the judicial reform was not the right solution. The government and the international community should have focused more on capacity building efforts in the Ministry of Justice and permanent justice institutions.

Italy is the lead country to assist us with the reform of the judicial system. Additionally, the American Bar Association’s Asia Law Initiative, the Center for International Management Education, and the United Nations Development Programme and US law firms are providing support for the reform process. Italy is providing funding to the International Development Law Organization (“IDLO”), which has compiled and republished many of the country’s existing laws. Some of the texts had to be located in foreign libraries. IDLO has organized a program to train judges, and has repaired courthouses.

Afghanistan was one of the first countries in the late 1950s to ratify the Convention on the Political Participation of Women. In the 1960’s women were ministers and members of our parliament and the first women judges were appointed in 1969. Taliban and their terrorist mentors banned women from public life.

Today, women legal professionals have created organizations such as the Afghan Women’s Judges Association, and the Afghan Women’s Lawyers Association. There are thirty-two women judges and approximately 400 women lawyers just in Kabul. There are also women judges, prosecutors and lawyers working in other major cities.

Today, more than 35,000 women are working in various public institutions. Afghan women are very active in the private sector; some even have established construction companies. Massuda Jalal was the first Afghan woman to run for President in our November elections.

While the legal framework for gender equality is established, true enhancement of women’s rights depends on the degree of investment made by the international community for education and economic empowerment of women in Afghanistan. Of 5.4 million children that are going back to school in Afghanistan, 38% are girls; but only 29 percent of classrooms in Afghanistan have roofs on them.

Afghanistan is a unitary state with most political authority vested in the government in Kabul. The Afghanistan public sector consists of the national government, 34 provinces, dozens of municipalities and over 300 districts.

More than two decades of conflict has destroyed Afghanistan’s traditional leadership which has been based on respect, patronage and reciprocity. The rule of gun and factionalism replaced the country’s traditional local power structure. While the new constitution allows a measure of decentralization, the people generally demand a strong central government, because they have been victimized for two and half decades by their local warlords and are worried about the fragmentation of the country.

The power of warlords is diminishing in Afghanistan. They are no longer a security threat to the government, but continue to pose a threat to civilians. While many local strong men are incorporated into the new political structure of the country, the demobilization, disarmament and reorganization (DDR) of former combatants continue. Thirty-six thousand combatants and 4,000 child soldiers have been demobilized under the UN-backed DDR program. We have gathered and moved to cantonment sites more than 7,850 tanks and artillery pieces. The heavy weapon cantonment is 95 percent complete. Over 63,000 names of militias (mostly ghost soldiers) have been removed from the payroll of the Government.

Plans to build the new national army are progressing on schedule. The target to have a 70,000-strong army will be achieved by December 2006. Twenty-five thousand have already been recruited and trained. Thirty-two thousand police officers are trained as part of rebuilding the Afghan National Police force.

Afghans have put their trust in the benefits of democracy and partnership with the United States and the international community. They are grateful to United States for all the assistance provided to them and thank all US soldiers, who are fighting alongside Afghans, to make Afghanistan and the world a safer place.

Thank you.