Since the Taliban’s return to power in August 2021, they have not established a formal constitution to govern the country. Instead, they rely on Islamic Sharia law and the jurisprudential interpretations they adopt, along with fatwas and decisions made by the Taliban’s leader, Sheikh Haibatullah Akhundzada.
The Taliban do not recognize the constitution that was adopted by the previous Afghan government in 2004, considering it to be influenced by Western models that do not align with their Islamic vision. However, they have not announced an alternative constitution, leaving a legal vacuum in the constitutional framework of governance.
This article discusses the development of the Afghan constitution through its various stages, starting from its establishment under the monarchy, through the changes brought about by military coups and the Soviet invasion, to the post-Taliban era in 2004 and the challenges it faces today. It also examines the most prominent constitutions drafted over the past century, why they were abolished, how the 1964 constitution caused a rift within the royal family, the Taliban’s stance on the constitution, and how its leaders dealt with both the monarchical and republican constitutions.
Drafting the Constitution in Afghanistan The constitutional movement in Afghanistan began with the issuance of the first written constitution in 1923, during the reign of Amir Amanullah Khan, who sought to modernize the country and strengthen its independence after breaking free from British influence. The constitution was an ambitious attempt to combine traditional values with modern ideas, but it faced strong resistance from conservative forces, leading to its downfall with the end of Amanullah’s rule. In the following decades, Afghanistan witnessed a series of constitutions, the most notable being the 1964 constitution during the reign of the late King Mohammed Zahir Shah, which was considered the pinnacle of the constitutional experience due to its focus on constitutional monarchy and democratic principles. However, it quickly collapsed with the political unrest that followed. Communist governments produced constitutions influenced by Soviet ideology before the 2004 constitution was adopted under the supervision of the international community, which attempted to establish a democratic system amidst immense security and political challenges.
With the Taliban’s second return to power, Afghanistan entered a new phase of constitutional ambiguity, as the movement rejected the constitution drafted in 2004, which was one of the longest-implemented constitutions in Afghanistan, indicating consistency and stability. Another important issue related to this constitution is that it was the most debated, analyzed, and discussed constitution in the country.
“Afghanistan was the first country among Islamic nations to establish a constitution based on constitutional theory, following the reformist ideas of Sayyid Jamal al-Din al-Afghani. It was the third country, after Turkey and Iran, to establish a constitution after the fall of the Ottoman Empire. Amir Amanullah Khan established the first constitution after the fall of the Ottoman Caliphate, and most of its provisions were prepared during the reign of Amir Sher Ali Khan with the assistance of Sayyid Jamal al-Din al-Afghani and Turkish and French advisors, but it was met with rejection and the Amir was unable to implement it” (1).
In Afghanistan, the constitution has undergone significant transformations over the past decades, influenced by internal conflicts, external interventions, and the ideological changes that the country has experienced. From the first written constitution on February 10, 1923, to the 2004 constitution, the Afghan constitution has been a tool reflecting the developments of power and the struggle for governance. Afghan historian Mohammed Hassan Kakar states:
“After the Afghan foreign policy was strengthened, Amir Amanullah began implementing extensive reforms, and the first step in this direction was the adoption of the country’s first constitution, which was accompanied by the experience and cooperation of French and Turkish advisors. This constitution contained 73 articles, which were unprecedented in Afghanistan’s history in terms of standards” (2).
When we look at Afghanistan’s first constitution, we find that Amir Amanullah Khan tried to keep the main powers in his hands, but his monarchy was no longer absolute, and the separation of powers was very limited. The adoption of the constitution was an important step forward and a bold attempt to modernize politics in Afghanistan, and the beginning of the reform project showed that a number of constitutional provisions were a new phenomenon in political life, despite the fact that not all provisions of the constitution were adhered to in practice. When evaluating Afghanistan’s first constitution in the early 1920s, it is difficult to disagree with the opinion of Russian researcher Karzhon, who believes: “The 1923 constitution was not a model of modern political liberalism, but if we look at it in the context of the prevailing social and political conditions at that time, we can appreciate the political changes that the constitution introduced to political life in Afghanistan” (3).
The constitution in Afghanistan is a mirror reflecting its turbulent political history and profound social and cultural transformations. Since the early twentieth century, Afghanistan has witnessed repeated attempts to draft constitutions aimed at organizing power and defining the identity of the state, but these attempts often collided with internal and external challenges that hindered their continuity and implementation. The process of drafting constitutions in the country is closely linked to crises, coups, and forced regime changes. Historically, Afghanistan has witnessed eight constitutions over the past century, in addition to an incomplete draft constitution during the rule of former Afghan President Burhanuddin Rabbani in 1993, which was not ratified for many reasons, the most important of which were the disputes among former mujahideen leaders.
Professor of Law at the International Islamic University Malaysia, Dr. Hashim Kamali, states: “The development of constitutions in Afghanistan is closely linked to the political changes that the country has undergone, starting from the modern reforms during the reign of Amir Amanullah Khan, through the unrest resulting from coups and civil wars, to the foreign interventions that directly affected its constitutional path” (4).
In early 1929, Amir Amanullah was forced to abdicate the throne, and after several failed attempts, he left the country and was unable to return. With the outbreak of civil war in Afghanistan, Habibullah “Bacha-i Saqao” was able to seize power, but his legitimacy was very weak and he was unable to maintain power. Then General Mohammed Nadir seized power in 1929 and adopted a new constitution in 1931, some of whose provisions and articles were copied from the 1923 constitution, particularly citizens’ and women’s rights.
It should be noted that within the Afghan political system established by the 1931 constitution, the king, despite some restrictions, retained all the essential powers, compared to the situation during the reign of Amir Amanullah, who relinquished some of his powers. Afghanistan took a step backward due to the new constitution (5).
After the assassination of King Mohammed Nadir Khan in 1933, his son, the late King Mohammed Zahir Shah, ascended the throne at a young age and ran the country’s affairs through his uncles, Mohammed Hashim and Shah Mahmoud, until he decided to transition from absolute monarchy to constitutional monarchy and ordered the formation of a committee to draft a constitution in 1964. The king did not lose his central role in the political system and remained the only power that was not subject to debate from a constitutional perspective. When compared to the 1931 constitution, we find that the text of the constitution was broader than the previous one and contained 128 articles. “The constitution was more democratic and separated the three powers for the first time in Afghanistan’s history, and it established democracy and political modernization, increasing opportunities for political participation” (6).
The only exception to constitutional change in Afghanistan that did not result from any coup or regime change was the 1964 constitution, which began during the reign of the late King Mohammed Zahir Shah (1933-1973) under the guise of reforms and modernization. The period of the king’s rule is considered the golden age of the constitution, as it was drafted during a period of relative stability with the aim of modernizing the country while maintaining a balance between tradition and reform.
King Mohammed Zahir Shah’s reforms began in the mid-1960s and were implemented gradually, but they did not lead to a complete transformation of the system. The “democracy project” failed, and the country witnessed five governments within ten years of the constitution’s drafting, ending with the coup by former Afghan President Mohammed Daoud Khan, which paved the way for subsequent crises. In the early 1970s, Afghanistan faced a severe political crisis that reached its peak with the overthrow of the king by his cousin, Mohammed Daoud, in 1973.
The 1964 royal constitution was more precise and developed than previous constitutions in many respects, but it marked the beginning of instability in the country. The constitution stipulated that the king’s sons, family members, and cousins were not allowed to join political parties, nor could they be appointed to government positions or elected as members of parliament or appointed as judges in the Supreme Court. This was interpreted as isolating and sidelining the king’s cousin, former Prime Minister Mohammed Daoud Khan, which plunged the country into chaos due to the conflict between the two parties. The late king tried to politically isolate his cousin, Mohammed Daoud Khan, in a gentle and democratic manner, and had proposed a new constitution that would help him come to power as a national leader through elections, but the king blocked his path, and he considered a coup against him (7).
After the coup led by the late King Mohammed Zahir Shah’s cousin, Mohammed Daoud, who declared himself president of the republic, formed a committee to draft the constitution three years after his coup in 1977, and it was the first constitution of the first republic in Afghanistan. The constitution granted broad powers to President Mohammed Daoud Khan, as he became the head of state and government, foreign minister, and commander-in-chief of the armed forces. The constitution attempted to distance the state from the direct influence of tribes and religious figures, but Mohammed Daoud Khan was killed in a bloody coup in 1978 led by the Afghan Communist Party, which abolished the constitution and replaced it with new constitutions aligned with socialist orientations.
Mohammed Daoud Khan’s constitution was radically different from the late King Mohammed Zahir Shah’s constitution, as Daoud Khan attempted to establish a strong republican system after ending the monarchy in the 1973 coup. The king’s constitution was based on Afghan and Islamic traditions, while Daoud Khan focused on secularizing the constitution. The king’s constitution suffered from weak implementation due to political conflicts, while Daoud Khan’s constitution lasted only one year, leading to radical changes in Afghanistan’s political system (8).
The 1977 constitution did not come into effect due to the coup against President Daoud Khan’s government on April 27, 1978, and after his death, the Revolutionary Council was announced under the leadership of Nur Mohammed Taraki, and a new government was formed under his presidency, adopting the Soviet model of governance. The role of religion in the constitution was reduced, and there was no mention of the Hanafi school of Islamic jurisprudence as the official religion.
The constitution reflected socialist thought, and the Central Planning Committee issued decisions without prior approval from the government, which was obligated to implement them.
The Constitution under the Communist Party After the overthrow of Mohammed Daoud Khan’s government, representatives of the Communist Party came to power in Afghanistan with support from the Soviet Union. The process of drafting the constitution did not begin until after Najibullah was elected as the party’s general secretary and president of Afghanistan. In 1979, the Communist Party was able to draft its own constitution, heavily influenced by left-wing ideological standards. After the Soviet withdrawal from Afghanistan in 1989, the last communist president abandoned communist goals, shifting from socialism to democracy, and respecting and adhering to religion became mandatory. The constitution of former Afghan President Najibullah closely resembles the text and content of the monarchical constitution, and after the fall of Najibullah’s government in 1992, Afghanistan once again entered a phase of conflict between jihadist parties and mujahideen rule (9).
The constitutional crisis did not end with the fall of the communist regime, as the mujahideen, after seizing power, once again sought to radically change the constitution. However, due to the emergence of a new wave of conflicts among them, and after Burhanuddin Rabbani assumed power, he abolished the previous constitution and was unable to find an agreed-upon alternative among the mujahideen as a constitution. “During the period of mujahideen rule under the leadership of Burhanuddin Rabbani, Afghanistan rapidly descended into chaos and disregard for the implemented constitution, leading to a climate of non-acceptance of the spirit of the constitution among the people to the extent that the culture of respecting and accepting it fell from people’s minds. The mujahideen did not agree on the draft presented by Rabbani for many reasons, the most important of which were security and changes in the power structure” (10).
There are only two exceptions in the history of the constitution in Afghanistan: the 1964 constitution, which set the path towards democracy in Afghan political life and remained in place until King Zahir Shah ascended the throne for over thirty years, and the 1990 constitution, which was an attempt by President Najibullah to rebuild the collapsed political system in the country. Apart from that, no Afghan constitution was able to confer legitimacy on the governments that drafted the constitution for themselves, and they remained ink on paper (11).
The Constitution after the September Attacks
After the events of September 11, 2001, the transitional government led by Hamid Karzai was tasked with forming a constitutional committee to begin drafting a new constitution. Within eighteen months, the new constitution came into effect in January 2004 and is considered one of the most progressive and modern constitutions in the past ninety years, achieving significant accomplishments over the eleven years but facing numerous challenges and problems in its implementation. There are various reasons for its non-implementation, most of which are not related to the text of the constitution or those who participated in its drafting, but rather a result of the changing situation in the country. The new constitution was able to put an end to the civil war for two decades and break the political deadlock in Afghanistan that had persisted since the 1940s (12).
Key Features of Afghanistan’s Constitutions Over the past century, several fundamental constitutions were established in Afghanistan, as the country witnessed repeated political changes that affected the legal and constitutional system. Here are the most prominent constitutions adopted:
1923 Constitution: Established during the reign of Amir Amanullah Khan, it was the first written constitution in Afghanistan and aimed to modernize the country and introduce legal and administrative reforms.
1931 Constitution: Issued during the reign of King Nadir Shah, it was more conservative compared to the 1923 constitution, reaffirming strong monarchical rule with some reforms.
1964 Constitution: Issued during the reign of King Zahir Shah, it established the basis for constitutional monarchy, introducing democratic reforms such as the establishment of an elected parliament, but it did not last long due to subsequent coups.
1977 Constitution: Drafted by former Afghan President Mohammed Daoud Khan after ending the monarchical system in 1973, but it was not implemented due to the communist coup in 1978.
1980 Constitution: Issued under communist rule led by the Afghan Communist Party, reflecting socialist orientations supported by the former Soviet Union.
1987 Constitution: Amended during the rule of Mohammed Najibullah, the last communist president, attempting to introduce some reforms and provide more space for political participation.
1990 Constitution: Ratified at the end of Najibullah’s era as part of an attempt to reconcile different factions, but it was not implemented due to civil wars.
2004 Constitution: Adopted after the fall of the first Taliban regime in 2001, establishing a democratic republic under the rule of former Afghan President Hamid Karzai.
By reviewing the eight constitutions approved in Afghanistan, they can be divided into three types:
- Authoritarian constitutions.
- Ideological constitutions.
- Democratic constitutions.
What distinguishes the constitution in Afghanistan is that it is considered one of the most rigid constitutions in the world, as it cannot be amended by the text of the constitution, and the committee or body authorized to amend it cannot convene under the current circumstances in Afghanistan. Therefore, governments that come to power through force prefer to abolish the old and draft the new (13).
The Taliban and the Constitution The absence of a formal constitution reflects the nature of the Taliban’s governance, which favors an approach based on religious rulings and leadership decisions, rather than a modern constitutional model. However, the future of the legal framework in Afghanistan remains unclear despite domestic and international calls for a clearer legal structure that defines citizens’ rights and mechanisms of governance in the country. “The Islamic Emirate relies on Islamic rulings according to the Hanafi school of thought to manage the country’s affairs, and at an appropriate opportunity, we will establish a constitution that aligns with Islamic principles. Currently, we do not face a constitutional vacuum, and there are countries and governments without written constitutions, but their affairs are managed according to a mechanism they deem appropriate for governing their country” (14).
What distinguishes the first and second periods of Taliban rule is that they did not establish a constitution due to their stance on the constitution and Western legal terminology. The disagreement over the constitution in Afghanistan has historical roots, as a number of scholars opposed the first constitution in Afghanistan regardless of its nature and sources, considering it an alternative to the Quran and describing it as disbelief, and they did not accept it. “To avoid confrontation with religious figures, Amir Amanullah Khan chose the term ‘Nizamnama’ instead of constitution or law.”
“In our beloved country, the word ‘law’ is considered the opposite of the word ‘Sharia’ and is specific to the judiciary. If any law or constitution is established, we call it ‘Nizamnama.’ During the reign of Amir Amanullah, and in order to establish a broad and long-term strategy for legal reforms, taking into account the conservative atmosphere in society and being cautious not to provoke a general reaction by inciting conservative and traditional religious figures, the term ‘Nizamnama’ was chosen, which is close to the meaning of law” (15).
After nearly three years since the Taliban came to power, this can be attributed to several political and strategic reasons related to the nature of the movement and its goals. The Taliban focused on imposing their vision of governance based on their interpretation of Islamic Sharia without the need to draft a traditional written constitution as is customary in modern states. The Taliban believe that Islamic Sharia according to their specific interpretation is the only constitutional framework they need for governance, and drafting a constitution may be seen as an alternative or compromise on this fundamental principle that forms their ideological identity.
The Taliban do not draft a constitution for two main reasons: the lack of constitutional expertise to draft it, and the absence of consensus among senior Taliban leaders on building a political system, as the ideology imposed on the Taliban’s mindset does not allow for it. There is a duality in dealing with the constitution, as the Taliban movement abolished the ‘mother’ constitution, and in administrative matters, it benefits from the laws and regulations of the previous government, such as the banking law, tax system, and contracts. “The founder of the Taliban movement, Mullah Mohammed Omar, leaned towards implementing the late King Mohammed Zahir Shah’s constitution, while the current leader leans towards implementing the 1977 constitution, known as Mohammed Daoud Khan’s constitution” (16).
The Minister of Justice in the Taliban government, Sheikh Abdul Hakim Sharai, suggested that the Taliban consider implementing the monarchical constitution with some reforms and deleting the articles related to the monarchy, and promised to draft a new constitution. The deadline for drafting and announcing the constitution has been postponed several times, and it seems that the Taliban movement has not been able to address the fundamental challenges. “The non-adoption of the constitution may be due to the power struggle within the movement, and no one wants to engage in a similar project that could weaken their strengths or cause confusion, revealing a sense of instability. Only a stable system thinks about the constitution, and the system does not stabilize unless the movement considers transitioning from the concept of a movement to the concept of a state” (17).
The Taliban movement avoids drafting a constitution for ideological reasons and to prevent internal divisions, preferring to deal flexibly with the international community. However, over time, a constitution may become necessary to consolidate governance and address economic and social challenges. It seems that they prefer direct control over risking a constitutional experiment. All Afghan constitutions have attempted to combine Sharia and modern laws to varying degrees, but the Taliban reject this approach and adopt Sharia as the sole source without accepting any external influence.
The constitution in Afghanistan is a central issue amidst the political changes the country has witnessed, especially with the Taliban’s second return to power. The Afghan constitution has been a subject of debate and conflict over the past century, with its texts changing several times according to the ruling entities. With the Taliban’s assumption of power, the future of the constitution remains unclear, especially in light of the movement’s orientation towards replacing previous constitutional laws with their own interpretation of Islamic Sharia.
