Rule of Law in Afghanistan: Enabling a Constitutional Framework for Local Accountability

Rule of law practitioners have defined rule of law as a way to achieve several objectives. Three commonly cited objectives are that rule of law should: 1. hold the governing powers accountable and limit official arbitrariness; 2. allow people to plan their affairs with reasonable confidence through open, clear, and stable rules where the state monopolizes the use of violence in the resolution of disputes; and 3. protect fundamental rights such as those embodied by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention Against Torture. This note provides a case study of Afghanistan to highlight that international efforts to promote rule of law in conflict societies must foremost ensure the first rule of law objective. A failure of accountability impedes the success of all other rule of law objectives. If power-holders can arbitrarily exert their will, people cannot predictably order their affairs and realize the second rule of law objective.1 In a culture of impunity, human rights violations at the uppermost—and the most visible, standard-setting levels—go unpunished, upsetting the third rule of law objective. The current constitutional framework in Afghanistan has not introduced meaningful checks and balances to ensure accountability at the national level. Instead, it has concentrated power in the executive branch, creating a patronage system that sinks from the top down into local communities. International pressure has been the primary and most visible means of holding powerbrokers accountable, which is itself counterproductive to an Afghanistan that is independent and legitimate in the eyes of its own people.2 Despite this top-down weight of the Constitution, fledgling bottom-up checks on power-holders have been realized by a national program not explicitly focused on establishing rule of law, but rather primarily aimed at building infrastructure projects and enabling community governance. This program, known as the National Solidarity Program (“NSP”), features a streamlined central financial management system that also decentralizes significant program and budget authority to local elected councils. The program has achieved measurable successes in ensuring that councils transparently manage their budgets and that community members hold their elected officials accountable for misuse of budgetary and project authority. However, recent efforts to bring NSP’s elected councils into the Constitution’s framework of centralized governance threaten the very characteristic that explains the program’s ability to achieve this accountability—the independence to manage locally administered budgets and elections. This note aims to show that future efforts at building rule of law in a transitioning conflict society should enable, within the constitution, local advantages that ensure accountability. These enabling provisions must be in place early: Afghanistan demonstrates the exceeding difficulty of pivoting from a highly centralized government to a decentralized one. Power has amassed in institutions and individuals that now will not readily relinquish authority