The Afghan Taliban Constitution Drafting

between theory and practice, new beginnings and calculated continuity

Introduction

Since August 2021, the Taliban have regained power in Afghanistan twenty years after their first controversial rule. The Taliban’s government is the only one in the Sunni world ruled by a religious class.

It identifies itself with the Deobandi movement and its administration therefore advocates a strict application of Sharia Islam based on Hanafi jurisprudence. Almost all the Afghan population is Muslim, and the overwhelming majority are Sunni Hanafis.

The Shia minority predominantly belongs to the Ja’fari Twelver branch of Shi’ism, with a smaller group belonging to the Ismaili subsect within Shi’ism.

Another critical element to take into account in Afghanistan is ethnicity. The majority of the Taliban are Pashtun: historically the predominant ethnic group in Afghanistan.

Almost all Afghan leaders in power since 1747 have been Pashtun. The other important ethnic groups in Afghanistan are the Tajiks, the Uzbeks, and the Hazaras, who are majority Shiite. The situation in Afghanistan is challenging on many fronts, mainly these three aspects:

(1) Economic situation, notably due to the lack of international aid and the freezing of funds;

(2) Security tensions with the emergence of ISKP;

(3) An uncodified and opaque governance system, featuring relatively controversial policies such as banning girls’ education.

Over the past years, various Taliban officials made several and contradictory allusions to drafting a new constitution.

A noteworthy characteristic of Taliban governance is their demonstrated reluctance to take any binding and, in particular, codified positions which they may be accountable to. Whilst an edict of laws governing the Ministry of Vice and Virtue has been promulgated since the completion of this fieldwork and report, news on any future constitution remains confined to the domain of theoretical discussion and guesswork, albeit the constitutional issue remaining a window to outlining the Taliban’s future governance in Afghanistan.

CPI experts conducted fieldwork in Pakistan and Afghanistan in Summer 2023 to understand the dynamics surrounding the drafting of the supposedly upcoming new constitution of the Islamic Emirate and the religious ethos guiding its drafting. Interviews were conducted with numerous actors including members of the de facto Taliban government and religious scholars, experts and civil society actors in Afghanistan and Pakistan. This study presents an analysis of the dynamics and different opinions of key stakeholders regarding the debate on the drafting of the new constitution in Afghanistan. The different readings and interpretations of the constitutional history and political culture of Afghanistan, most notably the 1964 constitution, play a cornerstone role in this debate up to this day.

Ozair Khan

Ahmed-Waleed Kakar

November 2024

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