Afghanistan: The new Afghan Constitution and women

WLUML presents below a brief selection of articles from the new Constitution of Afghanistan, adopted by the Loya Jirga in Kabul on Sunday, 4th January 2004.
The Articles have been chosen for their broad relevance to women’s issues and women’s participation in public political life. This English version is an unofficial translation circulated by Rights & Democracy. The original official versions are in Pashtu and Dari and should be consulted for further accuracy.
It is important to wait for Afghan women’s own analysis of the new constitution. However, WLUML would like to point out that mainstream media reports which highlight the absence of the word ‘sharia’ in the new constitution appear to have focused on one specific word and ignored the actual content of the new constitution.

Women delegates to the 3-week Loya Jirga faced considerable intimidation before and during the deliberations about the draft constitution, even though a woman, Safia Siddiqi, was deputy chair of the meeting. Below are brief extracts from recent press reports highlighting the attitudes they continue to face.

Extracted from:

Women on guard

There have already been reports of some intimidation. Earlier this month I was in Jalalabad, in the east of the country, where two women who were standing for election told me they had suffered intimidation. Humaira is a women's activist in the eastern city, Jalalabad. “They don’t want the women to leave home and demand what they’re entitled to.” Like so many other areas of Afghanistan, the gun rules in this region.

Powerful, conservative commanders run all aspects of life.

"On the way to my office I was stopped by armed men and was told I should resign, not stand for the election." "This was not only a blow against me, it was against all women here."

The following quote is attributed to the chairman of the Loya Jirga, Sibghatullah Mujaddedi, termed a ‘moderate jihadist’ by some mainstream media:

Extracted from The New York Times' December 16, 2003, Meeting on New Constitution, Afghan Women Find Old Attitudes by Amy Waldman.

"We all have to respect the vote," he said. "Women are free to vote for men. Men are free to vote for women. We cannot make this separation." Then he spoke words that still stung hours later. Don't try to put yourself on a level with men, he told the women. Even God has not given you equal rights, he added, because under his decision two women are counted as equal to one man. He was referring to a provision of Islamic law, itself displeasing to many women, that says that the testimony of two women is equivalent to that of one man in some cases. He did not bother to couch the sentiment in a legal context, presenting it instead as a general principle."

The Constitution of Afghanistan - Final Text

(Unofficial Translation: Please refer to Pashtu and Dari version for accuracy)


We the people of Afghanistan:

With firm faith in God Almighty and relying on His lawful mercy, and Believing in the Sacred religion of Islam,

Realizing the injustice and shortcoming of the past, and the numerous troubles imposed on our country,

While acknowledging the sacrifices and the historic struggles, rightful Jehad and just resistance of all people of Afghanistan, and respecting the high position of the martyrs for the freedom of Afghanistan,

Understanding the fact that Afghanistan is a single and united country and belongs to all ethnicities residing in this country,

Observing the United Nations Charter and respecting the Universal Declaration of Human Rights,

For consolidating national unity, safeguarding independence, national sovereignty, and territorial integrity of the country,

For establishing a government based on people's will and democracy,

For creation of a civil society free of oppression, atrocity, discrimination, and violence and based on the rule of law, social justice, protection of human rights, and dignity, and ensuring the fundamental rights and freedoms of the people,

For strengthening of political, social, economic, and defensive institutions of the country,

For ensuring a prosperous life, and sound environment for all those residing in this land,

And finally for regaining Afghanistan’s deserving place in the international community,

Have adopted this constitution in compliance with historical, cultural, and social requirements of the era, through our elected representatives in the Loya Jirga dated 14 Jaddi 1382 in the city of Kabul.

Chapter One

The State

Article One:

Afghanistan is an Islamic Republic, independent, unitary and indivisible state.

Article Two:

The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam.

Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of law.

Article Three:

In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.

Article Six:

The state is obliged to create a prosperous and progressive society based on social justice, protection of human dignity, protection of human rights, realization of democracy, and to ensure national unity and equality among all ethnic groups and tribes and to provide for balanced development in all areas of the country.

Article Seven:

The state shall abide by the UN charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights. […]

Article Seventeen:

The state shall adopt necessary measures for promotion of education in all levels, development of religious education, organizing and improving the conditions of mosques, madrasas and religious centers.

Chapter Two

Fundamental Rights and Duties of Citizens

Article Twenty-two:

Any kind of discrimination and privilege between the citizens of Afghanistan are prohibited.

The citizens of Afghanistan - whether man or woman - have equal rights and duties before the law.

Article Twenty-Three:

Life is a gift of God and a natural right of human beings. No one shall be deprived of this right except by the provision of law.

Article Twenty-Four:

Liberty is the natural right of human beings. This right has no limits unless affecting the rights of others or public interests, which are regulated by law.

Liberty and dignity of human beings are inviolable.

The state has the duty to respect and protect the liberty and dignity of human beings.

Article Twenty-Five:

Innocence is the original state.

An accused is considered innocent until convicted by a final decision of an authorized court.

Article Twenty-Six:

Crime is a personal action.

The prosecution, arrest, and detention of an accused and the execution of penalty can not affect another person.

Article Twenty-Seven:

No act is considered a crime, unless determined by a law adopted prior to the date the offense is committed.

No person can be pursued, arrested or detained but in accordance with provisions of law.

No person can be punished but in accordance with the decision of an authorized court and in conformity with the law adopted before the date of offense.

Article Twenty-Nine:

Torture of human beings is prohibited.

No person, even with the intention of discovering the truth, can resort to torture or order the torture of another person who may be under prosecution, arrest, or imprisoned, or convicted to punishment.

Punishment contrary to human integrity is prohibited.

Article Thirty-Three:

The citizens of Afghanistan have the right to elect and be elected.

Law regulates the conditions and means to exercise this right.

Article Forty-Three:

Education is the right of all citizens of Afghanistan, which shall be provided up to the level of the B.A. (lisee), free of charge by the state.

The state is obliged to devise and implement effective programs for a balanced expansion of education all over Afghanistan, and to provide compulsory intermediate level education. […]

Article Forty-Four:

The state shall devise and implement effective programs for balancing and promoting of education for women, improving of education of nomads and elimination of illiteracy in the country.

Article Forty-Five:

The state shall devise and implement a unified educational curriculum based on the provisions of the sacred religion of Islam, national culture, and in accordance with academic principles, and develop the curriculum of religious subjects on the basis of the Islamic sects existing in Afghanistan.

Article Forty-Eight:

Work is the right of every Afghan.

Working hours, paid holidays, right of employment and employee, and other related affairs are regulated by law.

Choice of occupation and craft is free within the limits of law.

Article Fifty-two:

The state is obliged to provide free means of preventive health care and medical treatment, and proper health facilities to all citizens of Afghanistan in accordance with the law. […]

Article Fifty-three:

The state takes necessary measures for regulating medical services and financial support to descendants of those who were martyred or are missing, to disabled or handicapped, and their active participation and re-integration into society in accordance with the law.

The state guarantees the rights and privileges of pensioners and disabled and handicapped individuals and as well renders necessary assistance to needy elders, women without caretakers, and needy orphans in accordance with the law.

Article Fifty-four:

Family is a fundamental unit of society and is supported by the state.

The state adopts necessary measures to ensure physical and psychological well being of family, especially of child and mother, upbringing of children and the elimination of traditions contrary to the principles of sacred religion of Islam.

Article Fifty-eight:

The State, for the purpose of monitoring the observation of human rights in Afghanistan, to promote their advancement (behbud) and protection, shall establish the Independent Human Rights Commission of Afghanistan.

Any person, whose fundamental rights have been violated can file complaint to the Commission.

The Commission can refer cases of violation of human rights to the legal authorities, and assist in defending the rights of the complainant.

The structure, and functions of this Commission shall be regulated by law.

Chapter Three

The President

Article Sixty:

The candidate to the Presidency on his or her candidacy shall declare the name of the Vice Presidents to the nation.

Article Sixty-three:

The President-elect, prior to resumption of his/her duties, performs the following oath of allegiance […]

Chapter Four

The Government

Article Seventy-two:

The person who is appointed as the Minister, should have the following qualifications:

[…]Should a nominee for a ministerial post also hold the citizenship of another country, the Wolesi Jirga [lower house] shall have the right to confirm or reject his or her nomination […]

Chapter Five

The National Assembly

Article Eighty-three:

Members of the Wolesi Jirga are elected by the people through free, general, secret, and direct elections. […] In the election law measures should be adopted for so the election system shall provide general and just representation for all the people of the country, and at least two female delegate should be elected from each province.

Article Eighty-four:

Members of the Meshrano Jirga [council of elders upper house] are elected and appointed as follows:

· From among the members of each provincial council, the respective council elects one person for a period of four years.

· From among the district councils of each province, the respective councils elect one person for a period of three years.

· The President from among experts and experienced personalities -including two representatives from the disabled and impaired and two representatives from the Kochis - appoints the remaining one-third of the members for a period of five years. The president appoints 50% of these people from among women.

Article Eighty-five:

A person who is nominated or appointed as a member of the National Assembly should have the following qualifications in addition to those considered by voters.

· Should be the citizen of Afghanistan, or has obtained the citizenship of the state of Afghanistan at least ten years before becoming a candidate.

· Should not have been convicted by a court for committing a crime against humanity, a crime, or sentenced of deprivation of his civil rights.

· Members of Wolesi Jirga should be Twenty Five years old at the date of candidacy, and members of the Meshrano Jirga should be Thirty Five years old at the date of candidacy or appointment.

Chapter Six

Loya Jirga

Article One Hundred and ten:

Loya Jirga is the highest manifestation of the people of Afghanistan.

Loya Jirga consists of the following:

Members of the National Assembly [i.e., lower + upper houses] […]

Chapter Seven

The Judiciary

Article One Hundred and seventeen:

The Supreme Court is composed of nine members who are appointed by the President for a period of ten years with the approval of the Wolesi Jirga with observance of the provisions of last paragraph of the Article 50 [which reads: “The citizens of Afghanistan are employed for state services on the basis of qualification without any kind of discrimination and in accordance with law.”] and article 118 of this Constitution. […]

Article One Hundred and eighteen:

A member of the Supreme Court shall have the following qualifications:

· The age of the Head of the Supreme Court and its members should not belower than forty at the time of appointment Shall be a citizen of Afghanistan.

· Shall have a higher education in law or in Islamic jurisprudence, and shall have sufficient expertise and experience in the judicial system of Afghanistan.

· Shall have high ethical standards and a reputation of good deeds.

· Shall not have been convicted of crimes against humanity, crimes, and sentenced of deprivation of his civil rights by a court.

· Shall not be a member of any political party during the term of official duty.

Article One Hundred and thirty:

While processing the cases, the courts apply the provisions of this Constitution and other laws.

When there is no provision in the Constitution or other laws regarding ruling on an issue, the courts’ decisions shall be within the limits of this Constitution in accord with the Hanafi jurisprudence and in a way to serve justice in the best possible manner.

Article One Hundred and thirty one:

Courts shall apply Shia school of law in cases dealing with personal matters involving the followers of Shia Sect in accordance with the provisions of law.

In other cases if no clarification by this constitution and other laws exist and both sides of the case are followers of the Shia Sect, courts will resolve the matter according to laws of this Sect.

Chapter Eight

The Administration

Article One Hundred and thirty eight:

In every province a provincial council is to be formed.

Members of the provincial council are elected in proportion to the population by free, direct, secret ballot, and general elections by the residents of the province for a period of four years in accordance with the law. […]

Article One Hundred and forty:

In order to organize activities involving people and provide them with the opportunity to actively participate in the local administration, councils are set up in districts and villages in accordance with the provisions of the law.

Members of these councils are elected by the local people through, free, general, secret and direct elections for a period of three years. […]

Article One Hundred and forty one:

Municipalities shall be set up in order to administer city affairs.

The mayor and members of the municipal councils are elected by free, general, secret, and direct elections.

Chapter Ten


Article One Hundred and forty nine:

The provisions of adherence to the fundamentals of the sacred religion of Islam and the regime of the Islamic Republic cannot be amended.

The amendment of the fundamental rights of the people are permitted only in order to make them more effective. Considering new experiences and requirements of the time, other contents of this Constitution can be amended by the proposal of the President or by the majority of the National Assembly in accordance with the provisions of Article 67, and 146 of this constitution.

Chapter Twelve

The Transitional Provisions

Article One Hundred and fifty nine:

The period, following the adoption of this Constitution, until the date of inauguration of the National Assembly, is deemed as a transitional period.

During the transitional period, the Islamic Transitional State of Afghanistan shall carry out the following tasks:

· Issue decrees related to the election of the President, National Assembly and local councils within six months.

· Issue decrees regarding the structure and authorities of the courts and basic administration structures within one year.

· Establish an Independent Electoral Commission.

· Implement the reform of the executive and judiciary.

· Adopt necessary measures for preparing the ground for enforcement of the provisions of this Constitution.