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The Taliban’s Real Challenge Begins Now

Sept. 3, 2021, 11:57 AM

The Taliban’s takeover of Afghanistan has marked another chapter in the country’s turbulent history. The military triumph, while unexpected and fragile, is the easy part of the battle for Afghanistan. The Taliban face a more formidable challenge: the battle for the hearts and minds of the people.

Afghanistan has changed dramatically since the last time the insurgent group wielded power. Indeed, most Afghans have little or no memory of their brutal regime between 1996 and 2001. The Taliban must now demonstrate that they have learned from history and are willing and able to govern in a way that garners legitimacy at home and abroad.

The principal test for the Taliban is establishing a genuinely inclusive government. While the group has repeatedly claimed to favor an inclusive system, there are valid reasons for skepticism. Exclusionary and ethnocentric policies by the runaway ex-president Ghani, and his predecessor Karzai, were among key factors in the collapse of the Afghan government—and indeed in the demise of other rulers in Afghanistan’s volatile and bloody history.

In a diverse country where no ethnic group comprises a majority, it is vital that all Afghans be meaningfully engaged in shaping the country’s future. The treatment of historically persecuted groups—such as women and Hazaras—will especially evince the sincerity of Taliban’s promises that their totalitarian ideology has evolved. As it stands, they have an uphill challenge ahead.

Need for Constitutional Reform, Decentralization

To that end, constitutional reform is paramount. The 2004 constitution, while Islamic and progressive in many respects, had serious flaws. Like prior constitutions, for instance, it ignored Afghanistan’s rich pluralism and decentralized political reality.

Instead, the constitution created an ultra-centralized political system with enormous powers vested in the Kabul-based government. Such concentration of authority effectively gave carte blanche to the central government to interfere in subnational governance by, among other things, controlling the purse and installing loyalists in key positions across the country. This system emboldened former presidents Karzai and Ghani (and their cliques) to essentially treat the country as their private fiefdoms.

Provincial governors, mayors, and district police chiefs, for example, were appointed by the president—rather than elected by the people—and thus beholden to their Kabul-based patrons as opposed to accountable to the local constituents they were supposed to serve. Provincial and district councils, on the other hand, were devoid of executive authority and effectively existed on paper. (Micromanagement and cronyism also crippled other vital institutions including electoral bodies and national security forces.)

A related structural defect concerned the flawed separation of powers system. The 2004 constitution established an unduly powerful executive and concomitantly weak legislature and judiciary. Most laws were promulgated through presidential decrees rather than by parliamentary acts.

The supreme court also was undermined by ambiguous judicial review powers. The parliament and the bench were further hogtied through other mechanisms including the creation of parallel, competing institutions controlled and manipulated by the president. The deficient checks and balances system paved the way for rampant unconstitutionalism and a full-blown rule of law crisis.

The highly centralized power structure and poor checks and balances system hampered governance, facilitated graft, deepened factionalism, sowed mistrust, and sapped the legitimacy of the central government in the eyes of ordinary Afghans—conditions which the Taliban exploited methodically.

The lesson is clear: Decentralization of power and effective checks and balances are prerequisites for a stable, peaceful, and prosperous Afghanistan.

Preserving and Strengthening Institutions

Besides constitutional reform, many other institutions and systems should be preserved and strengthened. If the Taliban are genuinely interested in the country’s development, they must recognize that governing Afghanistan today requires building upon the progress of the past 20 years—including the vast transformation of the country’s legal landscape.

An incredible plethora of much-needed laws and regulations have been enacted over the last two decades in response to the myriad challenges confronting Afghan society. These critical legal reforms, which are entirely congruent with Islamic tenets, have been adopted at national, regional, and international levels as Afghanistan has gradually re-engaged with the global community. To be sure, there are shortcomings that need to be rectified, but the current legal regime should be bolstered, not eviscerated under the guise of “Sharia law.”

A well-functioning legal system responsive to the 21st century needs of society will enhance the government’s legitimacy. A reliable and contemporary regulatory framework will also inspire confidence among Afghan merchants and attract foreign investment—an important imperative given the country’s mounting economic woes. Compliance with international laws and norms will also facilitate international recognition and development assistance. Violating legal obligations may have other ramifications as well.

Mobilizing and Supporting Professionals

Effective governance, however, is impossible without mobilizing and supporting the new generation of highly educated and talented Afghan professionals—including thousands of skilled lawyers—to navigate the complex challenges plaguing the country in an increasingly interconnected and sophisticated world.

The Taliban may be adept at brandishing guns, but that strategy will not yield a peaceful and prosperous Afghanistan. An inclusive political system, sound governance, and building upon the progress of the last 20 years are vital to avert regression into the country’s dark and violent past. As history has shown, such backsliding will not merely afflict Afghans.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Mehdi J. Hakimi is the executive director of the Rule of Law Program and lecturer at Stanford Law School. He was the former chair of the Law Department at the American University of Afghanistan. Follow him on Twitter at @MehdiHakimiJ.

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