No one said nation building would be easy. In Afghanistan this month, officials met a long-anticipated landmark toward ending the country's two-plus decades of war, oppression, and rock-bottom poverty. But to Western eyes, there was little to celebrate.
The 500 delegates to the country's loya jirga, or grand council, stood as one on Jan. 4 to signal approval of the country's new constitution. That in itself was a historic moment. It followed months of public scrutiny and three weeks of intense negotiations over the final draft of the document. It is the country's first working framework document since 1964, voted by the first popular assembly Afghanistan has formed in thousands of years.
In the end, the delegates approved a presidential system of government with a bicameral parliament, paving the way for nationwide elections later this year. The president is to be directly elected by the Afghan people and will have two vice-presidents. Men and women are to receive equal rights, a dramatic reversal to life under the Taliban regime when women were kept from working and participating in public life or even leaving their homes.
At the same time, to the dismay of religious-freedom advocates, the constitution's 160 articles spell out the framework for an Islamic republic with "Islam as its sacred religion." Even revisions made to the final draft, meant to give last-minute protection to non-Muslims (and cover from a U.S. veto of the document), could be used to prosecute Muslims who oppose government policies. Those restrictions might make Americans-and particularly soldiers in both Afghanistan and Iraq-wonder what all this fighting to bring democracy to the Middle East is really about.
Among the offending provisos, Article 2 states that followers of religions other than Islam "are free to perform their religious ceremonies within the limits of the provisions of law." Even though that language was adjusted in the final three weeks of debate to placate American concerns about protection for non-Muslims, it still violates both the American understanding of religious freedom and the UN Declaration of Human Rights. Those protect the rights of individuals to believe and to practice faith; this protects only religious ceremony. The final clause means laws could be passed to overrule religious freedom for non-Muslims (who account for less than 2 percent of the population).
Article 3 says "no law can be contrary to the sacred religion of Islam"-what Western scholars label the standard "repugnancy clause" for Islamic governments. Using similar language, governments and courts in Pakistan, Iran, and other Islamic nations have enforced anti-blasphemy laws and other measures to effectively muzzle free speech.
Article 130 allows Afghan courts to use "Hanafi jurisprudence" where there is "no provision in the Constitution or other laws regarding ruling on an issue." Hanafi is one of four main Sunni schools of Islamic law, or Shariah. Using Hanafi laws, the testimony of a woman in court equals one-half the testimony of a man.
Article 149 denies Afghans the right to second thoughts about the troublesome articles mentioned above. It says, "The provisions of adherence to the fundamentals of the sacred religion of Islam and the republican regime cannot be amended."
Despite its problems, the administration for now has praise for the work of the loya jirga. Secretary of Defense Donald Rumsfeld described Afghanistan as "free and moving forward" in a Jan. 6 news briefing. He said the new constitution "represents a truly significant milestone in that country's path to a moderate, democratic society."
Critics say the Bush administration has calculated to back its man in Kabul, current president Hamid Karzai, over the rule of law. According to Center for Religious Freedom director Nina Shea: "If this is a dress rehearsal for Iraq, then we are in trouble."