ACSI Strategy Paper: Towards a Constitutional Court in Afghanistan

April 9, 2020


In recent years, there has been an increase in the adoption of constitutional courts as countries transition to democracy from authoritarianism or civil war. It is argued that constitutional courts with extensive judicial review powers are necessary to the formation of a new democracy and the protection of rights. In Afghanistan too, the framers of the 2004 constitution initially crafted a constitutional court with explicit powers to interpret the constitution and exercise constitutional review. At the final stages of the drafting process, however, the makers of the 2004 constitution dropped the proposal and instead vested in the Supreme Court a vague power to exercise judicial review. Furthermore, they included within the constitution a commission, the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC), that would supervise the implementation of the constitution. Neither of these two bodies were explicitly granted the right to interpret the constitution. This textual imprecision of the constitution soon created a crisis over constitutional adjudication in Afghanistan. In fact, the Supreme Court and the ICOIC both claimed the right to interpret the constitution and exercise judicial review. Experience over the past fifteen years has shown that this dual structure of constitutional adjudication in Afghanistan has been counterproductive. It has not only undermined the independence and powers of the Supreme Court and ICOIC; it has also created costly political crises after every constitutional dispute between the executive and the legislature. This research paper attempts to provide a solution to the problem of constitutional adjudication in Afghanistan. In particular, the paper proposes answers to the following questions: (1) why is the current system of constitutional adjudication in Afghanistan ineffective?; (2) why should Afghanistan adopt a constitutional court?; and (3) what problems can a proposed constitutional court solve? 

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